MEMORANDUM OF CONSIDERATION

IN THE CASE OF:       

BOARD DATE:           12 September 2000                  
DOCKET NUMBER:   AR2000040568

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		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:  Reconsideration of his application to correct his records to show that he was released from service due to physical disability.

APPLICANT STATES:  In effect, that he was diagnosed as suffering from sleep apnea and this condition, not his consumption of alcohol the prior night, caused him to miss morning formation.  In essence he contends that he should not have received the non-judicial punishment (NJP) that resulted in his record being flagged under the Quality Management Program (QMP) program.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 21 December 1999 (COPY ATTACHED).

The applicant argues that he was suffering from sleep apnea and that it was this condition not his consumption of alcohol that caused him to sleep through his alarm and miss formation.  He submits copies of his service medical records (SMR’s) and his VA medical records.  The records submitted include the January 1996 diagnosis of sleep apnea, mild to moderate, with notations of surgical intervention and follow-up care through April 1996.  His post service medical records show care for sleep apnea, a liver condition, degenerative disk syndrome, leg and knee problems and an adjustment disorder. 

The applicant’s submissions are new evidence and argument that requires Board review.

While the non-judicial punishment (NJP) documentation is not in the applicant’s file, his QMP appeal packet does show that in 1994 the applicant was late to or missed a morning formation while serving in Korea.  Upon being called into his company commander’s office an odor of alcohol was detected and the applicant was sent for a blood alcohol testing.  The results of this test showed a blood alcohol level of 0.06.  Based upon this finding his company commander imposed NJP on a charge of drunk on duty. 

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 600-200, chapter 4, sets forth policy and prescribes procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  It is designed to (1) enhance the quality of the career enlisted force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service.  The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram.  Under the qualitative screening subprogram, the DA promotion, selection and retention boards regularly screen records for pay grades E-5 through E-9.  The appropriate board evaluates past performances and estimates the potential of each soldier to determine if continued service is warranted.  Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.

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.  There is no evidence that either the NJP or the QMP actions were improper. The applicant was not diagnosed as suffering from sleep apnea until January 1996, over a year and a half after the incident that led to his QMP bar to reenlistment. 

2.  Even if the diagnosis of sleep apnea had been of record at the time of the NJP, it would not have mitigated the 0.06 blood alcohol finding.  The applicant received the NJP for being drunk on duty not for having missed formation. 

3.  Further, to meet the requirements for separation due to physical disability a finding that the medical condition prevented the soldier from performing his assigned duties must be made.  There is no evidence that the diagnosed sleep apnea condition interfered with the applicant’s performance of his assigned duties.  In fact not only was he found fit for duty by a formal physical evaluation board, he did not even mention this condition during either his disability processing or his QMP appeal.

4.  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.

5.  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

__CMF__  ___FE __  ___CJS__  DENY APPLICATION

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

INDEX

CASE ID	AR2000040568	
SUFFIX		
RECON	 	
DATE BOARDED	20000912	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.06	
2.	108.01	
3.		
4.		
5.		
6.