MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           13 July 2000                  
	DOCKET NUMBER:   AR2000035262

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. James E. Anderholm		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:  Reconsideration of his earlier appeal to correct his records by upgrading his discharge to honorable.  He also requests a personal appearance hearing.  

APPLICANT STATES:  In effect, that he injured his back in a motorcycle accident.  Instead of being given proper medical care he was put in a special unit and forced to do physical training all day long, every day.  He went AWOL because of the pain and to obtain medical treatment.  He submits several post-service medical documents and several lay medical statements to substantiate his contention.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case on 6 January 1999 (COPY ATTACHED).

The applicant’s submissions are new evidence that require Board consideration.  

The medical records show that in September 1998 the applicant reported that he had endured continuous mid and lower thoracic, lower back and coccyx pain since  a motor vehicle accident at the age of 26.  He also reported that a 1987 MRI had shown a compression fracture of the lumbar and thoracic spine.  Subsequently, medical records show that the inter-vertebral disc between C6 and C7 was removed, the location was stabilized with a bone graft and a morphine pump was provided to deal with the pain. 

A letter from a minister to the effect that the applicant has been a regular member of the church for a long time.  The minister reports that the applicant relates that he received an other than honorable discharge because of his back injury.  

An individual reports that he has known the applicant all of his life.  The applicant was in good health when he entered the military but not when he came home.

Another individual writes that he and his wife have known the applicant for 12 years and that the applicant suffers constant back pain.  He has suffered because of an unjust discharge.

The applicant’s mother writes that he returned from the Army with a hurt back and has had five surgeries but still has constant pain.  

Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides in paragraph 4-3 that an enlisted soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority (GCMA) may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation.   This authority may not be delegated.  A copy of the determination must be entered into the case file when it is forwarded.

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 was found fit at his separation medical examination and the current submission does nothing to demonstrate an error or an injustice in the discharge.

2.  The applicant has provided no evidence to show that he was denied medical treatment or that AWOL was a reasonable, let alone the only available, solution to his alleged back problem. 

3.  The current evidence relates the applicant’s current medical condition to his discharge only because he reports that there is a causative relationship.  There is no evidence to support that contention.

4.  The elimination proceedings precluded the applicant’s referral into the disability system unless the GCMA had found that the alleged back injury was a 
substantial contributing cause of the misconduct.  However, there is no available evidence that, at the time of the discharge, the applicant offered any such explanation for his behavior.
 
5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

_JLP____  __MHM _  ___JEA__  DENY APPLICATION

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

INDEX

CASE ID	AR2000035262	
SUFFIX		
RECON		
DATE BOARDED	20000713	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	4 September 1984	
DISCHARGE AUTHORITY	 AR 635-120	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A93.21	
2.		
3.		
4.		
5.		
6.