MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 May 2000                   
	DOCKET NUMBER:   AR2000035533

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Lester Echols		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 discharge under other than honorable conditions be changed to a medical discharge.  

APPLICANT STATES:  That he suffered a head injury in December 1988 in the motor pool.  He was taken to William Beaumont Army Medical Center.  X-rays were taken and he was sent to work.  In 1999 the VA discovered that he suffered brain damage while on active service and determined he was insane at the time of the incidents leading to his discharge.  He provides his military and VA medical records as supporting evidence.

COUNSEL CONTENDS:  Counsel makes no further statement.

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

He enlisted in the Regular Army on 10 October 1978.  He was promoted to Staff Sergeant, E-6 on 7 September 1985.

On 19 June 1989, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for dishonorably failing to pay a debt.  His punishment was to forfeit $325.00 pay, suspended for 180 days, and 14 days extra duty and 14 days restriction.  On 9 August 1989, the applicant failed to go to physical training formation and the suspension was vacated.  

On 27 September 1989, court-martial charges were preferred against the applicant charging him with two specifications of failing to go to his appointed place of duty; two specifications of being absent without leave (AWOL); two specifications of wrongfully appropriating a television, property of the U. S. Government; one specification of going from his appointed place of duty without authority; and one specification of dishonorably failing to pay a debt.

The discharge proceedings packet is not available.

On 14 December 1989, the applicant was discharged, with a discharge under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial.  He had completed 11 years, 1 month and 27 days of creditable active service and had 9 days of lost time. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

On 19 April 1993, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.  

On 10 February 1999, the VA noted there were malasic changes in the applicant’s right frontal lobe as noted in a brain CT scan dated 23 March 1990 along with the structural right fronto-temporal contusion changes also noted in a brain MRI and abnormal EEG findings which represented chronic changes or late manifestations of a disease or injury which occurred sometime in a remote past with an evolution process longer than 6 months.  The VA concluded that the changes must have been present long before his discharge.  On 11 February 1999, the VA determined that the applicant was insane at the moment of committing the offenses that led to his discharge and upgraded his character of discharge to honorable for entitlement to receive VA benefits.

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 from the medical advisor to the Army Review Boards Agency.  The advisor reviewed all available service and VA medical records and found no evidence of treatment for any type of head trauma.  No X-ray report was found.

A copy of the advisory opinion was provided to the applicant with a request for any further evidence, if available.  The applicant responded that he had submitted all available evidence.

On 20 April 2000, William Beaumont Army Medical Center advised the Board that they maintain X-rays for 10 years.  After that time they are turned in for silver recovery.  They have no X-rays from earlier than 1990.

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.  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 and, in the absence of evidence to the contrary, it is presumed that the administrative discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  Any rating action or decision by the VA 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 and makes decisions as it sees fit.  Any rating action or decision by the VA does not compel the Army to modify its type of discharge accordingly.

3.  The Board empathizes with the applicant’s concern, but without further evidence to show he incurred his head injury while in service relief is not warranted.

4.  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

__aao___  __vbc___  ___le___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR2000035533	
SUFFIX		
RECON		
DATE BOARDED	20000516	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.