MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           7 September 2000                   
	DOCKET NUMBER:   AR2000036003

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi 		Chairperson	
	Mr. Walter T. Morrison 		Member	
	Mr. Thomas B. Redfern, III 		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, and that his record be corrected to show his pay grade as E-5 at the time of his discharge, with the restoration of all rights, privileges, and property.   

APPLICANT STATES:  That his pay grade of E-5, from which he was reduced to pay grade E-1, between March and May 1971 should be restored.  He should receive a medical discharge.  He had an excellent service record from      December 1968 through December 1970.  He had psychological problems after his tour in Vietnam as indicated in the mental hygiene report of May 1971.

COUNSEL CONTENDS:  Counsel was notified that the applicant’s case was available for review, but failed to respond. 

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

The applicant was inducted into the Army on 5 December 1968.  He was discharged and enlisted for three years on 12 December 1968.  He completed training at Fort Eustis, Virginia as a turbine engine repairman.  He was promoted to pay grade E-5 in October 1969.  Thereafter, he was assigned to Fort Stewart, Georgia, and in February 1970 was assigned to the 499th Transportation Company of the 101st Aviation Battalion in Vietnam.

On 20 July 1970 the applicant received nonjudicial punishment under Article 15, UCMJ, for violating a lawful general regulation by being outside the limits of his camp without proper authority.  

On 11 August 1970 the applicant was awarded the Army Commendation Medal for meritorious achievement.

On 7 November 1970 the applicant was awarded the Bronze Star Medal for meritorious service during the period 1 February 1970 to 31 October 1970.

On 7 December 1970 the applicant received nonjudicial punishment for being absent from bed check and for failing to go to work formation, his appointed place of duty.  He was reduced to pay grade E-4.  In a statement attached to the nonjudicial punishment proceedings, a staff sergeant stated that the applicant did not make formation on the 27th of November 1970, nor did he report for duty the entire working day.  In another statement, a Sergeant First Class stated that the applicant was one of the sick, lame, and lazy types, and that his past record showed he had been absent from duty and always on sick call since he had been assigned.  

The applicant returned to the United States and was assigned to Fort Eustis, Virginia.  

On 8 February 1971 the applicant received nonjudicial punishment for AWOL from 17 January 1971 to 26 January 1971.  He was reduced to pay grade E-4.

On 26 March 1971 the applicant received nonjudicial punishment for failing to go to his appointed place of duty.  He was reduced to pay grade E-3, but that reduction was suspended for two months.  On 13 April 1971 the suspension was vacated.  

On 22 April 1971 the applicant’s commanding officer recommended that the applicant be barred from reenlisting.  He stated that the applicant had been a constant disciplinary problem in that he required continued close supervision.  He stated that the applicant displayed a hostile attitude and a poor, cooperative spirit. He stated that the applicant’s military appearance, sanitary habits, maintenance of clothing and equipment, and military bearing were far below standards, and that efforts to counsel him had been to no avail.  During the counseling sessions, the applicant had been indifferent, apathetic, and listless.  His conduct and efficiency were unsatisfactory.  On 19 May 1971 the recommendation was approved.   

On 23 April 1971 the applicant received nonjudicial punishment for being absent from his place of duty.  He was reduced to pay grade E-1.  That reduction was suspended until 23 June 1971.  That suspension was vacated on 5 May 1971.

The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he was AWOL from 3 May to 8 May 1971.

A 26 May 1971 report of psychiatric examination indicates that the applicant had a background of an exceptionally disturbed family life, with a resultant social inadaptability prior to and during service.  His typical pattern of behavior was characterized by passive means of expressing his anger often involving pouting, procrastination, obstructionism, intentional inefficiency, or stubbornness.  The applicant admitted that he was nonproductive and had no intention of being productive.  He was completely unmotivated for further service, and his general behavior and performance was not likely to improve.  The applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to participate in administrative proceedings.  He met the medical standards for retention in the Army.  The examining psychiatrist diagnosed the applicant as having a character and behavior disorder as manifested by a passive aggressive personality.  He recommended that the applicant be separated from the Army.

A 26 May 1971 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1.  The applicant stated on that report that he was in good health.

On 4 June 1971 the applicant consulted with counsel and stated that he had been advised of the contemplated action to separate him for unsuitability under the provisions of Army Regulation 635-212.  He waived consideration of his case by a board of officers, and elected not to submit statements in his own behalf.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged for unsuitability under the provisions of Army Regulation 635-212.  He cited the applicant’s behavior, his conduct and his efficiency, as reasons for his recommendation.  He attached the records of the nonjudicial punishment actions, records of counseling sessions, and the reports of psychiatric and medical examinations.  He recommended that the applicant receive a general discharge.

On 8 June 1971 the separation authority approved the recommendation and directed that the applicant be furnished a General Discharge Certificate.

On 10 June 1971 the applicant stated that there had been no change in his medical condition since his last medical separation examination.

The applicant was discharged on 15 June 1971.  He had 2 years, 5 months, and 25 days of service and 15 days of lost time. 

In a 23 September 1998 VA examination for post-traumatic stress disorder (PTSD), the applicant’s condition was diagnosed as PTSD, moderate to severe, chronic.  

 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.

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, he must be unable to perform the duties of his 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.

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment is appropriate in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by the formal courts-martial rules of evidence and may consider any matter, including unsworn statements the commander reasonably believes to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

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 contention that his service prior to 1971 was excellent is not borne out by the facts.  The Board notes that the applicant was awarded the Bronze Star Medal and the Army Commendation Medal while in Vietnam.  The Board also notes that the applicant received nonjudicial punishment on two occasions while in Vietnam, and was reduced in grade. 

2.  The applicant’s administrative separation was conducted in accordance with the applicable law and regulation in effect at that time.  The character of the discharge is commensurate with the applicant's overall record of military service.

3.  The applicant’s medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  At the time of the separation physical examination on 26 May 1971, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  The applicant himself stated that he was in good health, and five days prior to his separation, he stated that there had been no change in his medical condition since his separation physical examination.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.  

4.  Furthermore, 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.

5.  There is no evidence to show that the applicant has been awarded a service connected disability rating from the VA.  Nonetheless, 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.

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.  As its name indicates, nonjudicial punishment is different from a trial by court-martial.  A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  Before he elected to accept nonjudicial punishment the applicant was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence and could have argued technical matters such as the jurisdictional question.  Instead he chose to have each of matters for which he was accused to be settled at nonjudicial punishment.  

8.  The applicant’s nonjudicial punishments were imposed in compliance with applicable laws, regulations and policies.  The punishments imposed were neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of his rights. There is no good reason to support his request to have his rank restored to pay grade E-5 prior to his discharge.

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

10.  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 that requirement.

11.  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

___cla___  ___wtm__  ___tbr___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036003	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000907	
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.  177	108.00	
2.	110.00	
3.	133.00	
4.		
5.		
6.