MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           13 June 2000                   
	DOCKET NUMBER:   AR1999028455

	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. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon 		Chairperson	
	Mr. John H. Kern		Member	
	Ms. Barbara J. Ellis		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:  In effect, physical disability retirement or separation.  

APPLICANT STATES:  That she was injured while in the service and found out what was wrong with her when she went to sign out, while waiting to come home. The pain started before basic training.

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

The applicant enlisted in the Army for three years on 18 September 1998 and was assigned to Fort Jackson, South Carolina for training.  

The applicant was counseled on 17 October 1998 for writing frat mail, for talking in line, and for failure to follow instructions.  The NCO who counseled her stated that she was starting to show a pattern of a lack of discipline, and her actions showed no self discipline or respect for authority.

The applicant was counseled on 21 October 1998 because of unsatisfactory performance manifested by a lack of motivation. 

A 29 October 1998 performance record shows that she was rated either poor or fair in various Army values, motivation and discipline attributes, and that she had not achieved the standards to move to the next phase of basic training.  Her counselor informed her that although she knew right from wrong, she simply did not care at times, that she did not show respect for fellow soldiers, and that she argued a lot.  He stated that she needed to work at being part of the team.

A 29 October 1998 report of mental status evaluation indicates that the applicant was mentally responsible and had the mental capacity to understand and participate in proceedings.  The examining official stated that the applicant had an adjustment disorder, was depressed, and had a history of substance abuse.  That official recommended that the applicant be discharged.

The applicant’s commanding officer notified the applicant that he was initiating action to discharge her from the Army under the provisions of Army Regulation 635-200, chapter 11, entry level status performance and conduct.  He informed her that if she was discharged she would receive an entry level separation with an uncharacterized discharge.

The applicant stated that she had been afforded the opportunity to consult with counsel and she declined the opportunity.  She stated that she had been advised of the contemplated action to separate her, its effects, the rights available to her, and the effect of any action taken by her in waiving her rights.  She declined to submit statements in her own behalf.

The commanding officer recommended to the separation authority that the applicant be discharged.  She was discharged on 4 November 1998.  She had     1 month and 17 days of service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provides for the separation of personnel in an entry level status for unsatisfactory performance or conduct as evidenced by inability, lack of reasonable effort or a failure to adapt to the military
environment.  These provisions apply only to individuals whose separation processing is started within 180 days of entry into active duty.  An uncharacterized separation is mandatory under this chapter.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40, paragraph 3-2b states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

That paragraph goes on to say that when a member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform her duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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

1. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.  Although there is no evidence of record that the separation authority approved the recommendation to discharge her, the fact that she was discharged indicates approval was granted.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

2.  There is no evidence, nor has the applicant submitted any, to show that she was injured while on active duty.  Her continued performance of duty raised a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with her separation.
3.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of her request.   

5.  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 or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

6.  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

___jhk___  ___eb___  ___bje__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999028455	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000613	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.		
3.		
4.		
5.		
6.