MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 December 1999                   
	DOCKET NUMBER:   AR1999027995

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Christopher J. Prosser		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his honorable discharge be changed to a medical discharge.

APPLICANT STATES:  That he had bleeding ulcers and was given a permanent profile of no combat duty.  He was taking medication for his ulcers and also for migraine headaches and for a psychological condition.  He was too sick to perform his daily duties.  He was given an early release because of his sickness. He provides as supporting evidence a DA Form 3349, Medical Condition – Physical Profile Record dated 28 March 1975; Clinical Record Consultation Sheet dated 2 September 1976; and an extracted page from his medical records dated 24 June 1975.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 4 October 1974.  He completed basic training and advanced individual training and was awarded military occupational specialty 64C (Motor Transport Operator).

On 28 March 1975, the applicant was given a permanent physical profile for ulcer disease with an assignment limitation of “no assignment with prolonged consumption of combat rations.”

On 25 June 1975, the applicant was treated for nervousness.  The treatment record shows he was diagnosed with some type of neurosis and ulcer disease.  He was referred to Mental Hygiene but there is no evidence of record to show what the outcome of the referral may have been.

Between July and August 1976, the applicant was counseled on five occasions for failing to participate in the company GI (cleaning) party and for having a filthy area, for continuing to fall out late for formation, for reporting late for guard duty, for failing to get a haircut, and for eating in the mess hall and failing to pay for the meal although he was on separate rations, respectively.

On 2 August 1976, the applicant’s permanent physical profile was changed to a temporary physical profile.

The applicant received an annual Enlisted Evaluation Report for the period April 1976 – August 1976.  Although most of his duty performance trait areas were rated as “needing some or much improvement,” the block concerning his physical condition was rated as “superior to most.”  One of the indorser’s comments was “If the job suits him he will perform, otherwise the job will not be accomplished.”

On 2 September 1976, the applicant was evaluated by Internal Medicine for possible medical discharge for ulcer disease.  The evaluating physician noted the applicant probably did not qualify for a medical discharge.
On 17 September 1976, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for making a false official statement (stating he had a meal card when he did not).

On 14 September 1976, the applicant received a mental status evaluation and was found to have no significant mental illness, to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to be mentally capable of understanding and participating in board proceedings.

On an unknown date, the commander initiated separation action on the applicant under the provisions of Army Regulation 635-200, Chapter 5, expeditious discharge.  The commander cited his failing to qualify for a military driver’s license and his using his medical profile as a form of shirking his duty.  His opinion was confirmed by the fact the applicant did not qualify for a medical discharge.  His failure to pay his just debts also made his retention questionable. 

On 20 September 1976, the applicant acknowledged notification of the action and voluntarily consented to the discharge.  He did not submit a statement in his own behalf.  

On 22 September 1976, the appropriate authority approved the recommendation and directed the applicant be given an honorable discharge.

On 5 October 1976, the applicant was discharged, with an honorable discharge, in pay grade E-3, under the provisions of Army Regulation 635-200, Chapter     5-37, failure to maintain acceptable standards for retention, Expeditious Discharge Program.  He had completed 2 years and 2 days of creditable active service and had no lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in Chapter 5 provides that members who have completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential may be discharged.  It provides for the expeditious elimination of substandard, nonproductive soldiers before board or punitive action becomes necessary.  No member will be discharged under this program unless he/she voluntarily consents to the proposed discharge. 

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty. 

Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

In the processing of this case, an advisory opinion was obtained form the Medical Advisor to the Army Discharge Review Boards Agency (SEE ATTACHED).  The opinion noted that changing the applicant’s discharge status was not medically indicated.

The applicant rebutted the advisory opinion, noting that it did not address his constant migraine headaches, his diagnosis of a neurosis, his hospitalization for a nervous breakdown in 1976, or that his many medications could hinder his duties as a 64C.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error.  The applicant has failed to submit evidences that would satisfy the aforementioned requirement.

2.  The applicant’s separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The applicant did not have to consent to his discharge if he believed his problems were medically caused.

3.  The Board agrees with the applicant that he had been evaluated for a medical discharge; however, the evaluating physician stated he doubted if the applicant qualified for a medical discharge.  The Board agrees with that conclusion.  There is no evidence of record to show the applicant was ever given a physical profile because of his migraine headaches or his neurosis.  There is no evidence to show he was ever hospitalized for a nervous breakdown.  His 14 September 1976 mental status evaluation found him to have no significant mental illness.  He may have been on medication but his Enlisted Evaluation Report for the period ending August 1976 rated his physical condition as “superior to most.”  There is no evidence of record to show he could not perform his duties, although there is evidence to show he would not perform them.

4.  If the applicant has received a disability rating from the VA, such rating does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its discharge accordingly. 

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__gdp___  __clg___  __cjp___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999027995	
SUFFIX		
RECON		
DATE BOARDED	19991229	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.