MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             7 June 2000                  
	DOCKET NUMBER:    AR2000038728

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. James P. Stueve		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:  Through counsel, that his records be corrected to show that he was hospitalized while on a leave status, that his leave status was changed to hospitalized on the date of his admission, and that he be given a lump sum leave settlement.  He also requests that that he be given continuation of pay until he was medically cleared to return to his civilian job.  Lastly, he requests reconsideration of the Board’s denial of his request that his discharge be corrected to a separation for physical disability.

APPLICANT STATES:  Through counsel, that while serving as a drilling reservist in pay grade E-5, on 5 May 1990 he submitted a urine sample which tested positive for marijuana.  The applicant was advised of his rights as a result of that positive urinalysis and exercised his rights without notice to his command.  He attended and successfully completed a substance abuse course and he took an independent urinalysis with negative results.  He was mobilized in November 1990 in support of Operation Desert Storm.  When he returned to the United States, he was accidentally shot by his father prior to his being released from active duty.  That wound was determined to have been incurred in line of duty by both the Army in a line of duty investigation and by the Department of Veterans Affairs (DVA).  In February 1992 the applicant’s commander notified him of his intention to recommend his discharge for misconduct, drug abuse, and of his rights in conjunction with that recommendation.  Counsel states that the applicant exercised all of his rights; he did not waive them.  Notwithstanding his election of rights, he was issued a general discharge for misconduct.  Subsequent to his discharge the Army Discharge Review Board (ADRB), by unanimous decision, changed his characterization of service to fully honorable, and stated that his discharge was both improper and inequitable.  He states that the DVA initially awarded the applicant a zero percent disability rating for his gunshot wound and later changed that rating to 30 percent disabled.  Counsel cites Army Regulation 635-200, Title 10, USC, and 38 Code of Federal Regulations (CFR) and opines that the Board may have made an error in its prior denial of the applicant’s request for a disability separation in its statement that the zero percent rating is not a degree of disability.

EVIDENCE OF RECORD:  The applicant's military records were not provided to the Board.  The following information was derived from documentation provided to the Board by the applicant and his counsel.

On 2 June 1990 the applicant, a sergeant serving in a troop program unit in the Army National Guard, was advised of his rights under Article 31, UCMJ, and of the limited use policy for drug and alcohol abuse.  This notification was based on his positive urinalysis for an illegal or controlled substance.

On 21 November 1990 the applicant was mobilized with his unit in support of Operation Desert Shield.  

When Operation Desert Storm was concluded, the applicant’s ARNG unit was returned to the United States and were in the process of demobilizing.  The applicant was apparently not required to report to his unit after his arrival at home station, as he returned to his civilian job on a full time basis.  On 8 June 1991 the applicant was accidentally shot by his father when his father was showing him his new pistol.  He was hospitalized with a diagnoses of gunshot wound to his right chest with right hemothorax.

On 12 June 1991, the applicant was honorably released from active duty and returned to his status as a drilling Guardsman.

On 27 June 1991 the applicant was released from the hospital.  While the applicant was hospitalized he initiated paperwork with Champus to pay his medical bills.

On 20 July 1991 the applicant returned to work at his civilian job.

On 26 July 1991 a formal LOD investigation was completed which had an approved recommendation of the applicant’s wound being considered incurred in line of duty.

On 14 January 1992 the applicant’s commander notified him of his intent to recommend his discharge for misconduct as a result of his positive urinalysis.  In a document dated 17 February 1992 the applicant requested personal appearance at a board of officers.  

On 29 October 1993 the applicant was issued a General Discharge Certificate.  (The applicant did not submit any documents which would show the disposition of his request for a board of officers.)

A decisional document from the DVA shows that the applicant has now been awarded a 30 percent disability rating for the residuals of a gunshot wound, and obstructive lung disease which is considered to be secondary to smoke inhalation during his Gulf War service (both disabilities are combined in this rating).

On 5 March 1999 the ADRB upgraded the applicant’s discharge to fully honorable and changed the reason and authority for his discharge to Secretarial Authority.  In the ADRB’s decisional document it is opined that the applicant’s discharge was improper and inequitable.  That opinion was based on the allegation that the applicant was not given a board of officers to consider his case despite his right to a board, the fact that he was retained beyond his term of unit service (not expiration of his term of service), and the fact that his discharge was initiated nearly two years after the misconduct.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  There is no indication that the applicant informed his unit that he was injured.  Since the applicant was on a military status most closely proximated by terminal leave, his unit may not have been aware of his injury and hospitalization.  His unit could not have initiated action to place him under military medical control, which would have been necessary to retain him on active duty, without knowledge of his injury.  Retention on active duty when injured is neither mandatory nor automatic.  As such, his release from active duty was proper and there is no reason to change it.

2.  Since the applicant was in fact on active duty when he was hospitalized, his claim with Champus was appropriate.  The amount of the medical bills that are payable by Champus is established by law and regulation.

3.  Upon the applicant’s release from active duty he continued to receive civilian medical treatment without authorization by the servicing MEDDAC.  As such, those medical bills are not payable by the Army.

4.  By not informing his unit of his injury, he was not placed into the Army medical system which would have resulted in the transfer of his medical care responsibility to a military or DVA medical treatment facility.  At that point his medical care would have been provided by a military or federal treatment facility free of charge and would have resulted in a decision being made on his continuation on active duty to receive medical care.

5.  As for the applicant’s request to be medically discharged or retired, as stated in the Board’s denial of his first application there is no evidence that he was physically unfit to perform his military duties.  In addition, he was pending a discharge which could have resulted in an other than honorable discharge which precluded his processing through disability channels.

6.  The documents provided by the applicant indicate that he requested a board of officers to consider his case.  However, without his military records there is no method for the Board to determine whether he sent his election form to his unit in a timely fashion or if a board of officers did in fact consider his case.  As such, the Board must presume regularity in his separation for misconduct.  Prior to making this conclusion this Board carefully considered both the ADRB’s upgrade of the applicant’s general discharge and the ADRB’s comments concerning the equity and propriety of his discharge.

7.  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

___mkp _  __esc ___  ____jps  _  DENY APPLICATION

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

INDEX

CASE ID	AR2000038728	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000607	
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.	108.05	
2.	128.70	
3.		
4.		
5.		
6.