MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            16 March 2000                  
	DOCKET NUMBER:    AR1999028564

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch, Jr.		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 general discharge for unsuitability be corrected to a medical retirement.

APPLICANT STATES:  He was under extreme mental stress when he was discharged and didn’t realize that he was consenting to a discharge for unsuitability.  He had been told by his commander that he was going to be medically retired due to his mental problems and his knee problem.

In support of his application he submits his VA rating decision which awarded him a 50 percent disability for major depression and a 30 percent rating for his knee, the latter based on a 2 February 1996 diagnosis of mild degenerative joint disease (the effective dates of his original ratings are not included in this decision).  The applicant also submits copies of medical records pertaining to him while he was on active duty.  In those records it is shown that he was hospitalized at a civilian medical treatment facility for severe depressive neurosis, due to his wife leaving him for another man, and was treated for knee pain resulting from driving his automobile, no injury involved.

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

He enlisted in the Regular Army with no prior service on 3 November 1975.  He was awarded the military occupational specialty of armor crewman and promoted to pay grade E-4.

On 9 January 1978 the applicant’s commander notified him that he was recommending that he be discharged due to unsuitability and of his rights in conjunction with that recommendation.  The applicant submitted a waiver of all his rights.  In that waiver he acknowledged that the waiver was for a separation due to unsuitability.

On the same day the applicant’s commander submitting a recommendation that he be discharged due to unsuitability.  The basis for his recommendation was his failure to pay his just debts, his complete lack of self-discipline, his acceptance of nonjudicial punishment for failure to repair which resulted in his reduction from pay grade E-4 to E-3, and his arrest by civil authorities for 2nd degree misconduct.

In conjunction with his separation the applicant was given a mental status evaluation and an orthopedic evaluation for his knee and was determined medically qualified for separation.

Accordingly, on 6 February 1978 the applicant was given a general discharge for unsuitability.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.    In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career. 

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

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

1.  It would appear that the applicant was being treated for situational depression due to his wife leaving him.  This is normally a transient condition and would not be considered medically disqualifying.  

2.  As for the applicant’s knee, while there is evidence that he was treated for non-traumatic knee pain while he was on active duty, there is no indication that it was medically disqualifying.  He was rated for a degenerative joint disease by the VA 18 years after his discharge.  This is indicative of a condition that slowly deteriorated over the years until it finally became a physical handicap.

3.  The applicant was specifically examined prior to his discharge because of his depression and his knee problem, and was determined medically qualified.  Based on those findings there was no basis for considering him for a medical retirement.

4.  As for the applicant’s contention that he was unaware that he was being considered for separation by reason of unsuitability is not accepted by the Board.  He signed two documents acknowledging the nature of his commander’s recommendation.  There is no indication that he was not mentally competent when he signed those forms.

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

__jlp   ___  _owt____  __cjp______  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028564	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000316	
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.	108.05	
2.		
3.		
4.		
5.		
6.