MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           16 March 2000                   
	DOCKET NUMBER:   AR1999028803

	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. Kenneth H. Aucock		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:  In effect, physical disability retirement or discharge.  

APPLICANT STATES:  In effect, that he should have received compensation because of his medical problems from the date of his discharge on                     11 February 1987 through December 1992, when the VA submitted a claim on his behalf. 

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

The applicant enlisted in the Army for four years on 26 March 1980, completed training and was assigned to a signal battalion at Fort Lewis, Washington.  In December1981 he was assigned to a signal battalion in Germany.  On              21 February 1984 he reenlisted in the Army for four years.  In June 1984 he was assigned to a signal battalion at Fort Gordon, Georgia, and remained at that installation until his discharge. 

The applicant has been awarded the Army Good Conduct Medal and the Army Commendation Medal, among other awards.  His DA Form 2-1 (Personnel Qualification Record) shows that he was promoted to pay grade E-4 in September 1982, reduced to pay grade E-3 in March 1983, promoted again in October 1983, reduced to E-3 in February 1985, promoted once more in September 1985 and reduced to pay grade E-3 in March 1986. 

On 25 October 1982 the applicant received a certificate of achievement for his outstanding performance of duty. 

On 13 December 1982 the applicant received a certificate of achievement for his selection as recipient of the pathfinder professional badge, for outstanding achievement as communication patching control operator at the 1st AD control center during Reforger 82.

On 31 October 1983 the applicant received a certificate of achievement for his exemplary performance of duty.

On 14 August 1984 the applicant received a letter of appreciation for his outstanding duty performance during the period 2-26 July 1984. 

On 14 December 1984 the applicant was counseled for missing two formations.

On 18 December 1984 the applicant was counseled for missing the hospital pinch test for overweight personnel. 

On 14 February 1985 the applicant received nonjudicial punishment under     Article 15, UCMJ, for absenting himself from his place of duty, and for being drunk while on duty. 
A 10 October 1985 letter to the applicant’s commanding officer indicates that the applicant had four checks dishonored, and since that was his second offense, his check cashing privileges were suspended for one year. 

On 16 December 1985 the applicant was counseled for missing a personal financial management training class (the second time that he had missed that class), for missing a suspense date to have his military identification card overstamped, and for missing his class on DUI. 

On 2 February 1986 the applicant received nonjudicial punishment for disobeying a lawful order by missing his military tribunal appointment.

On 12 March 1986 the applicant received a letter of reprimand for operating a motor vehicle while intoxicated on 2 November 1985.

On 13 March 1986 the applicant was counseled as a result of his being found guilty of driving under the influence of alcohol on 2 November 1985.

On 18 March 1986 the applicant received nonjudicial punishment under Article 15, UCMJ, for drunk driving.

On 2 April 1986 the applicant was counseled for missing formation.

The applicant was on medical profile in October and November 1986, and could do no running, crawling, stooping, marching, or standing for long periods of time, nor could he handle any heavy materials of any kind, nor do any overhead work, push ups, or pull ups.

On 3 November 1986 the applicant’s commanding officer notified the applicant that he was initiating action to separate him from the Army for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b.  The applicant consulted with counsel and requested consideration of his case by a board of officers.  The applicant’s commanding officer recommended to the separation authority that the applicant be discharged and that he receive a general discharge.  His recommendation indicated that a physical and mental status evaluation were forwarded with the recommendation.  The applicant’s battalion and brigade commander both endorsed that recommendation.  The separation authority appointed a board of officers to determine whether or not the applicant should be eliminated from the Army.

The board convened on 9 January 1987.  The applicant and his counsel were present at the proceedings.  The proceedings showed that the applicant was an experienced and well trained soldier, who had a pattern of misconduct.  His counsel indicated that much of his misconduct was alcohol related; however, there had been no problems since February 1986, almost a year ago, and the applicant had stopped drinking altogether last spring.  The applicant’s first sergeant and his former supervisor, a captain, both indicated that the applicant performed well while on the job, that he had been on the overweight program but had not made good progress, and received a bar to reenlistment.  However, because the applicant had soldiered hard, and did an outstanding job on his team, the bar to reenlistment was lifted.  Then he got into trouble again.  He was cited for driving under the influence while on post.  Both he and the first sergeant counseled him, and both he and the first sergeant indicated that the applicant’s acts of misconduct were not compatible with military service.  He stated that the applicant had been given the benefit of the doubt to improve.  His potential as an operator and a team chief in the Army was good, but he did not have any potential to be a NCO.  He went on to say that the applicant was the best soldier in his MOS that he had seen in the Army; however, he would not want him in the unit because of the time expended with him.

Five NCOs testified on behalf of the applicant, each saying in effect, that he was a good soldier and that he was technically very proficient.  His section sergeant stated that the applicant had made mistakes, but he could become an effective leader.  His former platoon sergeant stated that the applicant’s skills were outstanding, and even though  he did not set an example for subordinates, he felt that the applicant should be retained.  His former section chief stated that the applicant was self motivated and needed little or no supervision, and that on numerous field problems the applicant worked alone.  He stated that he felt that the applicant could be an asset, despite his misconduct, but also stated that a soldier who had nonjudicial punishment did not have a very good future in the Army.  Another NCO, who had known and worked with the applicant for over two years, stated that the applicant was a very good patch operator, and showed him (the NCO) things that he did not know.  He stated that a soldier had to be a soldier 24 hours a day, and the applicant had shortcomings, but if he could prove to his command that he could put those things behind him, he could be useful to the Army.  Another NCO also stated that the applicant was technically proficient, stating that he had 16 years of service, and the applicant was the best patch operator he had seen.  He stated that the applicant had the potential to train and educate, and that assuming that he resolved his problems, he would be glad to have him back.       

The applicant testified, stating that he had solved his problem with alcohol, and had stopped drinking since February or March of 1986.  He had developed a bladder problem, and eventually lost one rib and one kidney.  He stated that if he was retained in the Army he could overcome anything, and stated that his overweight status now was related to his medical problems. 

The board found that the applicant was guilty of a pattern of misconduct and recommended that he be discharged from the Army and receive a General Discharge Certificate.
On 5 February 1987 the separation authority approved the recommendation of the board.  The applicant was discharged on 11 February 1987.  He had 6 years, 10 months, and 16 days of service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged for misconduct; however, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.  Paragraph 14-12b states that soldiers are subject to separation for a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personnel conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.

Paragraph 1-34 of the aforementioned regulation states, in pertinent part, that medical examinations are required for soldiers being separated per chapter 14, section III, acts or patterns of misconduct (to include commission of a serious offense), and that when a soldier is to be processed per chapter 14, section III, the unit commander must ensure that an appropriate mental status evaluation is obtained in addition to the medical examination.

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 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40 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.

Army Regulation 635-40 provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his 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.

Title 38, United States 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.

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 separation for misconduct  was appropriate considering his numerous acts of indiscipline.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time with no indication of procedural errors which would tend to jeopardize his rights.  The character of the discharge is lenient.  The applicant could have received an discharge under other than honorable conditions.  

2.   The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

3.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.

4.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

5.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

6.  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.

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

8.  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 the aforementioned requirement.

9.  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___  ___cjp___  ___owt__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028803	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000316YYYYMMDD	
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.  189	108.00	
2.		
3.		
4.		
5.		
6.