MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            26 September 2000 
	DOCKET NUMBER:   AR2000043808

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Thomas F. Baxter		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, disability retirement or separation with all appropriate back pay.

APPLICANT STATES:  His “command abused its authority when [they elected] to discharge [him] and forego medical board recommendations.”  In support of his request he submits a copy of his Medical Board Proceedings (MEB).

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

He enlisted and entered active duty on 30 April 1975.  He successfully completed basic and advanced individual training and was assigned to Germany as an infantryman in September 1975.

According to a medical summary form, submitted by the applicant, he underwent a hernia operation on his right testicle on 29 October 1975.  The document noted that his “post operative course was normal but when he ambulated he noted sharp burning pain near the wound.”  The applicant continued to experience pain and in September 1976 appeared before a MEB.  The MEB noted his “chief complaint” as “persistent pain beneath his operative site in the right groin” and recommended the applicant be referred to a Physical Evaluation Board (PEB) because of the “nature of the disability he has been unable to perform [the functions of the job he enlisted for] and he does not wish to remain in the Army in a lesser capacity.”  The MEB documents, also provided by the applicant, are authenticated by the MEB members but are not authenticated by the approving authority or the applicant.

The applicant’s records do not contain any service medical records and there is no indication if the applicant ever appeared before a PEB, or if he did, the results.

His automated DA Form 2 (Personnel Qualification Record – Part 1), which was prepared on 14 March 1977, shows a physical profile series of 1-1-1-1-1-1 and that the applicant’s physical category was “A” indicating he had no physically limiting profile conditions.

On 14 March 1977 the applicant’s unit commander initiated action to administratively separate the applicant under the provision of the Expeditious Discharge Program.  The commander cited the applicant’s inability to adapt to the military, severe problems with his chain of command, and his attitude and duty performance as the basis for his recommendation.  The applicant’s commander also noted that the applicant had been punished on two separate occasions under Article 15 of the Uniform Code of Military Justice (UCMJ).  The applicant acknowledged receipt of the proposed separation, consulted with counsel and waived his attendant rights.

The recommendation was approved and on 28 March 1977 the applicant was discharged under honorable conditions.

Army Regulation 635-40 states that the mere presence of an impairment does not, in itself, justify a finding of unfitness because of physical disability.  Once a soldier has been enlisted, inducted, or commissioned, the fact that a soldier may later fall below initial entry physical standards does not, in itself, authorize separation or retirement.  Likewise, a lack of special skills or an inability to meet physical standards established for specialized duty, does not, in itself, establish eligibility for disability separation or retirement.  Although the ability of a soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion will not serve as the sole basis for a finding of unfitness.

It also states that a MEB may find that a soldier does not meet Army medical retention standards and refer a soldier to a PEB for disability processing but the MEB findings and recommendations are not binding on the PEB.  The PEB decides whether the soldier is physically fit or unfit for duty.

Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 5, as then in effect, provided, in pertinent part, for the Expeditious Discharge Program (EDP).  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate.

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 evidence of record indicates that at the time the applicant was administratively discharged in March 1977 he did not have a physical profile of any kind. 

2.  The applicant’s records did not contain any of the documents associated with his disability processing.  The only documents, the MEB proceedings, were provided by the applicant.  The Board notes that the applicant’s MEB occurred in September 1976 and his commander did not initiate action to administratively separate the applicant until several months later, in March 1977.  The lapse of those six months tends to support a conclusion that if the applicant was indeed referred to a PEB that he was likely found fit for continued duty.  His lack of a physical profile at the time of his separation also supports that conclusion.  The applicant has not provided any evidence that a PEB found him unfit for continued duty.  The MEB, in its findings, essentially concluded that the applicant should be referred for disability processing solely because he was unable to meet the physical demands of an infantryman, his enlistment specialty, and he did not want to “remain in the Army in a lesser capacity.”  Such a desire would not be a basis to conclude that an individual was unfit for continued service.  

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 that 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

___aao__  ___mhm__  __tfb___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043808	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000926	
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.	108.00	
2.		
3.		
4.		
5.		
6.