MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  27 June 2000
	DOCKET NUMBER:  AR2000035754

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Walter T. Morrison		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, that his general discharge be changed to separation or retirement by reason of physical disability.

APPLICANT STATES:  That he is disabled and entitled to disability benefits retroactive to his date of separation.  He submits a copy of his separation physical in support of his application.

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

He enlisted and entered active duty on 17 February 1981.  He completed training as an infantryman and was assigned to Germany.  He was promoted to pay grade E-3 effective 18 October 1981.

The applicant was punished under Article 15, UCMJ on 3 December 1981, for theft of cigarettes from the post exchange.  On 2 March 1983, the applicant was placed in confinement as a result of a sentence imposed before a general court-martial.  The applicant was found guilty of possession of over 47 grams of marijuana with intent to distribute.

The applicant was placed on voluntary excess leave on 25 May 1983 pending review by the Army Court of Military Review and execution of the bad conduct discharge.  His excess leave status was terminated on 30 January 1984, based on the command’s inability to contact him at the leave address provided.  He was ordered to report back to his command or he would be considered in an AWOL status.  Attempts to contact him through his wife and other family members were without results.  The applicant was formally dropped from the rolls of the Army as a deserter on 10 March 1984, and charges were preferred.

On 14 May 1984 the Army Court of Military Review declared the findings and sentence imposed at the applicant’s court-martial invalid and void.  The court found that the charges had failed to specify the wrongfulness of the possession and intent to distribute the marijuana.  A decision on whether to retry the case was deferred pending the applicant’s return to military control.

The applicant was apprehended by civilian authorities on 13 November 1987, and returned to military control on 17 November 1987.  On 17 December 1987, after consulting with counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial if approved for a general discharge.  On 23 December 1987, the separation authority approved the request and directed issuance of a general discharge.

On 10 February 1988, a medical examination found him to be qualified for separation with a physical profile of 1/1/1/1/1/1/1.  The only abnormalities identified were a high frequency hearing loss and that he was treated and taking medication for psoriasis.  At a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good. There was no significant mental illness.

Effective 26 February 1988 the applicant was separated under honorable conditions in pay grade E-3 under the authority of Army Regulation 635-200, chapter 10.  He had 3 years, 3 months, and 13 days creditable service and 1,377 days 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.

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 a disability incurred while entitled to basic pay.

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.

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

Army Regulation 635-40, paragraph 2-2b, as amended, 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.
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 medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress and no indication of procedural errors which would tend to jeopardize his rights.

3.  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.

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

__mm___  __cg___  ___wm__  DENY APPLICATION

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

INDEX

CASE ID	AR2000035754	
SUFFIX		
RECON		
DATE BOARDED	20000627	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19880226	
DISCHARGE AUTHORITY	AR 635-200, Ch 10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.01	
2.		
3.		
4.		
5.		
6.