MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            31 October 2000                  
	DOCKET NUMBER:   AR2000040306

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Allen L. Raub		Member	
	Ms. Brenda F. Hirschi		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 she be granted back pay and allowances due from the date of her improper discharge until the date the Board approved the correction of her records; that she be restored to the grade of E-5 or E-6 which she would have had but for her wrongful and improper discharge.  She also requests, in effect, that her discharge be changed to a disability retirement.

APPLICANT STATES:  That at the time of her improper discharge she had an exemplary and distinguished military career with future plans of continued service in the Army.  Retention is no longer a factor for her now as she has been rated with a partial disability from the VA at 50 percent and is unable to reenlist into the Regular Army or the U. S. Army Reserve.  If not for her improper discharge, she would have had the opportunity to apply for a regular disability separation.  The applicant provides seven statements of support (originally provided during her discharge proceedings), a VA rating decision and summaries of four court cases.

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

On 2 July 1992, she was discharged under the provisions of Army Regulation 635-200, chapter 9, drug abuse rehabilitation failure.  She later applied to the Army Discharge Review Board (ADRB) to change the narrative reason for her discharge.  The ADRB granted her request noting that the Clinical Director’s statement did not declare her a rehabilitation failure and the commander improperly initiated her separation as a drug rehabilitation failure.  

The applicant then applied to this Board to have all derogatory information removed from her records, to void her discharge and to be reinstated.  On           3 November 1999, the Board granted her full relief with one exception.  Her normal expiration term of service (ETS) would have been 11 October 1992.  Since reenlistment is a contract, the creation of which required volitional acts by the applicant which did not occur and which the Board did not retroactively presume, her records were corrected only to show that she had continued to serve on active duty until 11 October 1992.  She was given the opportunity to apply for reenlistment under the applicable regulations.

On 24 February 1998, the VA awarded the applicant a disability rating of 50 percent -- 40 percent for degenerative arthritis and the remaining 10 percent for an unknown reason.

The cited court case of Kindred versus United States concerned the plaintiff’s discharge from the Navy for homosexual conduct.  In that case, the U. S. Court of Federal Claims found that a correction board erred in failing to correct Kindred’s records when an administrative error occurred.  (His discharge board had failed to take into consideration factors required to be considered when the reason for discharge is homosexuality.)

Doyle versus United States was cited in the Kindred case and considered the plaintiff’s entitlement to be properly considered for retention.  The Court of Claims in Doyle’s case stated that the Army selection boards which reviewed his records for promotion were improperly constituted because reserve members were not included.  The Court of Claims held that “…relook boards that do not undertake the exhaustive reevaluation that a normal, regular selection board does do not provide the full and complete opportunity…”  Likewise, the Court of Federal Claims in the Kindred case believed that the Board for Correction of Naval Records’ consideration of the retention factors did not provide the “full and complete” opportunity for that plaintiff to be considered for retention.

The cited court case of Doe versus The United States concerned Doe’s discharge which was accomplished through the use of hearsay evidence wrongfully obtained by Government lawyers in direct violation of a state court order.  In this case the Court of Appeals for the Federal Circuit found that Doe’s case failed the test that a minimum level of proof must be found in the record to conclude the offense occurred and that Doe was also not offered the opportunity to confront his accusers.  The case was remanded to the trial court to fashion an appropriate remedy, including back pay and correction of records, such as restoring Doe to the position he would have been in but for the wrongful discharge.

The cited case of Nolan versus United States concerned a Coast Guard officer recommended for involuntary separation.  The Commandant of the Coast Guard approved Nolan’s discharge without sending the case to the Secretary of Transportation for action.  Title 14, U. S. code, section 326 provides that the Secretary may remove an officer from active duty if his removal is recommended by a board of review.  The Secretary’s action in such a case is final and conclusive.

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.

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 this requirement.

2.  The applicant’s case is not the same as that of Kindred versus United States. In the applicant’s case a correction board (this Board) did not err in failing to correct an administrative error.  The Board did correct the administrative error that occurred in the applicant’s discharge proceedings.

3.  The applicant’s case is not the same as that of Doyle versus United States.  In the applicant’s case the Board corrected the administrative error in her discharge proceedings.

4.  The applicant’s case is not the same as that of Doe versus The United States. In the applicant’s case the Board did fashion an appropriate remedy, including back pay and correction of her records and including restoring her to the position she would have been in but for the wrongful discharge.

5.  The applicant’s case is not the same as Nolan versus United States.  The separation authority for an enlisted soldier is not the Secretary of the Army.  The proper authority had directed her discharge but he did so without the Clinical Director first properly declaring her a rehabilitation failure.

6.  The cases cited by the applicant are not relevant to her case in another regard.  They involve officer cases and officers’ time in service is not determined by an enlistment contract.  An officer’s term of service is indefinite after attaining career status and only limited by statutorily mandated retirement dates based on length of service and/or age.

7.  In addition, the rating action by the VA does not necessarily demonstrate that the applicant would have become medically unfit under Army retention standards (which are not as restrictive as enlistment standards).  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  The VA, unlike the Army, is not required by law to determine medical unfitness for further military service in awarding a disability rating.  The Board will not presume that the applicant’s medical condition would have developed into a medically unfitting condition had she remained in the Army.  The Board will not presume that she would in fact have chosen to reenlist upon her ETS of 11 October 1992 or, if she had, that she would have been promoted to the grades of E-5 and E-6.

8.  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

__eja___  __alr___  __bfh___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040306	
SUFFIX		
RECON		
DATE BOARDED	20001031	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.