MEMORANDUM OF CONSIDERATION

IN THE CASE OF:       

BOARD DATE:           4 May 2000                  
DOCKET NUMBER:   AR2000035561

	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	
	Ms. P. A. Castle		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James P. Stueve		Member	
	Ms. Carol Jo Suiter		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, reconsideration of his previous appeal to correct his records by showing that he was separated due to physical disability.

APPLICANT STATES:  In effect, that he has appealed the 30 June 1999 dismissal of his complaint in the US District Court Eastern District of New York, against the Department of the Army and the Director of the Board and that the Army has two weeks to send him a medical discharge.  He contends that he was in mental health programs in his youth before joining the Army.  He states that the Board’s denial of his first request resulted in a discredit of his character, slander of his name and accusations that his discharge was not under honorable conditions.  He says this led to the termination of his membership with the American Legion and he has filed suit in a court of law against the Director of the Army Board for Correction of Military Records and demanded 10 million dollars for mental pain and suffering.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case on 14 January 1998 (COPY ATTACHED).

The applicant submits a copy of a 30 June 1999 court order that dismissed his complaint against the Department of the Army and the Director of the ABCMR.  Attached to the court order is a copy of a form for the US Court of Appeals for the Second Circuit whereon the applicant has handwritten his contentions that his civil rights have been violated and that the Army has two weeks to send him his medical discharge.  The applicant’s complaint to the court is also attached wherein he states the Board’s decision defamed and slandered his name and discredited his character by stating his discharge was not under honorable conditions causing his eight year membership with the American Legion to be terminated.  He submits a copy of his General Discharge certificate, under honorable conditions dated 4 August 1970. 

A letter dated 18 October 1995 from the Woodward Mental Health Center in New York affirms to the applicant that they have a record of his three month attendance in 1965 when it was a school for emotionally troubled children.  The letter states the applicant’s diagnosis at that time was passive-aggressive personality.

On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 
4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

In October 1978, Public Law 95-126 was enacted.  This legislation denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

Army Regulation 635-40, paragraph 4-2, precludes physical disability processing or continuing disability processing of an enlisted member who is being processed for administrative separation under any regulatory provision which authorizes separation under other than honorable conditions.  The only exceptions are when the officer exercising general court-martial jurisdiction (who may not delegate this authority) finds that the disability was the cause or a substantial contributing cause of the pertinent misconduct or that other circumstances warrant disability processing.

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 law and regulations make it clear that to be separated for physical disability a soldier must be physically unable to perform duty.  Furthermore, the presence of a medical condition that was acquired or aggravated while entitled to basic pay does not necessarily require a medical evaluation board or qualify an individual for physical disability.

2.  The applicant was being processed for separation under conditions that could have led to discharge under other than honorable conditions and was not eligible for physical disability processing. 

3.  On 18 October 1978 the ADRB declined to affirm the upgrade of his general discharge under the uniform standards which denied VA benefits to any former service member who had been AWOL for more than 180 consecutive days.

4.  The applicant’s request for reconsideration contains no new evidence or information that warrants recharacterization or a medical discharge.  Whether or not the VA provides benefits is a matter solely within the purview of that department.  It does not demonstrate an inequity or error in the applicant’s discharge.

5.  Prior to reaching a determination that it is not in the interest of justice to excuse the failure to timely file, the Board normally looks at the entire file.  Only after the merits of a case have been considered do the panel members consider the statute of limitations. The display of the details of the record of service and the pertinent regulatory and statutory provisions shows that the merits of this  case were considered.  Had the Board determined that an error or injustice had existed in this case, it undoubtedly would have recommended relief in spite of the 3-year time limit. 

6.  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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__LLS__  __JPS_ __  ___CJS__  DENY APPLICATION

	Karl F. Schneider
			         Director, Army Review Boards Agency

INDEX

CASE ID	AR2000035561	
SUFFIX		
RECON		
DATE BOARDED	20000504	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19700804	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	CH 10	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES        1.  110.00		
2.		
3.		
4.		
5.		
6.