MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            27 March 2001
	DOCKET NUMBER:   AR2000045630

	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			
	Ms. Antoinette E Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Mr. Allen L. Raub		Member	
	Ms. Gail J. Wire		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 his general discharge (GD) under honorable conditions be upgraded to an honorable discharge.  By reference, this is also a request for reconsideration of the denial by this Board on 28 July 1982 of his request for a change in the reason for his discharge to a medical discharge.  

APPLICANT STATES:  That his discharge was inequitable because it was deceitful, it was based on one isolated incident in 18.5 months of service and he was coerced by a master sergeant.  He was severely handicapped due to an injury to his left leg while on active duty.  He submits extracts of various Army medical records concerning the treatment of his leg injury in 1981, a letter of commendation concerning his physical fitness while on active duty before his leg injury, evidence concerning his application for an Associate Degree in General Studies at Macomb Community College, dated March 2000, his self-certification of a "clean" police record in Detroit, Michigan and his designation of a service organization to serve as counsel in his case. 

COUNSEL STATES:  That the applicant served on active duty from 9 June 
1980 until 23 December 1981.  He was discharged under the provisions of Army Regulation (AR) 635-200, paragraph 5-31b, failure to maintain standards, characterized as Under Honorable Conditions.  Therefore, Counsel contends that the Board’s attention to the injustices raised by the applicant request as indicated on his DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) are substantially reflected by the probative facts and should be equitably reviewed.  

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

On 9 June 1980, he enlisted in the Regular Army for a period of 4 years.  He completed his basic training and his advanced training in military occupational specialty (MOS) 63B (Power Generator Equipment Operator) at Fort Dix, New Jersey, on 1 August 1980.  On 20 August 1980, he was transferred to Germany for duty.  On 9 December 1980, he was advanced to the rank of private, pay grade E-2.

On 3 February 1981, the applicant, while on a local skiing trip with members of his unit, fell and injured his left leg.  He was hospitalized and diagnosed as having a compound fracture to his left leg that required immediate surgery.  On 19 March 1981, he was given 30 days convalescence leave and then was to be placed on a 90-day temporary medical profile. On 20 April 1981, he was reassigned to office duty in order to comply with his medical profile. 

On 8 September 1981, the applicant, received nonjudical punishment (NJP) under the provisions of Article 15, Uniform Code Military Justice, for three incidents.  These included failure to go at the time prescribed to his appointed place of duty on 26 August 1981, failure to obey an order to report to the motor pool on 11 August 1981, and dereliction in the performance of his duties in that he failed to inspect and to guard the unit living area on 11 August 1981.  His punishment included forfeiture of $100.00 pay and extra duty for 
7 days. 

In addition, his records show that he received 6 counselings for repeatedly failing to obey lawful orders, leaving his place of duty to go to sleep, his indifferent apathetic attitude towards his duties, and his failure to reverse his unacceptable behavior.

On 30 November 1981, the applicant received a medical evaluation, which cleared him for separation.  It was further recommended that after separation he follow-up with orthopedic care of his left leg at the VA.

On 4 December 1981, the applicant’s unit commander initiated action to separate him with a GD under the provisions of AR 635-200, paragraph 5-31, (the Expeditious Discharge Program (EDP)).  The applicant was advised of his right to consult with legal counsel and was informed of the impact of a GD.  He voluntarily consented to the discharge, and declined to submit a statement in his own behalf.  

On 11 December 1981, the separation authority approved the separation recommendation and directed that the applicant be separated with a GD.  In addition, the applicant would be transferred to the Individual Ready Reserve (IRR) in order to complete his service obligation.

On 23 December 1981, the applicant was discharged from active duty under the provisions of AR 635-200, paragraph 5-31, for failure to maintain acceptable standards for retention (EDP) with a GD.  He had 1 year, 6 months and
15 days of creditable service and no lost time.  

On 28 July 1982, this Board denied his request for a change in his reason for discharge from an EDP to a medical discharge.  In connection with this appeal, the Board referred his case to the Office of the Surgeon General (OTSG) for medical review.  The OTSG opined that the applicant was medically fit for retention or appropriate separation at the time of his release from active duty. 

Army Regulation 635-200, in effect, at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 5-31h(1) of this regulation provided, in pertinent part, for the separation of individuals determined to clearly be substandard performers.  This paragraph also provided for the separation of those individuals who obviously could not adjust to the Army environment, and or those who responded initially but within a short period of time demonstrated that they were incapable of permanent adjustment.  Under this regulation a GD or a HD was considered appropriate.  Further, the regulation then in effect stated that no individual would be given a GD by the separation authority unless the commander initiating the action for separation recommended it and the soldier had the opportunity to receive legal counsel.

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.

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 therefor, has failed to submit evidence that would satisfy this requirement.

2.  The applicant's administrative separation under the EDP was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  The applicant’s substandard record of service fully supported the directed discharge action, as evidenced by his NJP action and repeated counselings.

3.  The applicant was properly notified of the discharge action.  He acknowledged the notification, his right to legal counsel and he stated that he understood the rights available to him and that he voluntarily consented to the EDP discharge.  He also declined to make a statement in his own behalf. 

4.  There is no probative evidence of any medical problems in his record or with his application that shows he had any medical condition which precluded his performance of duty, even though he was placed in a temporary profile duty status. This is further supported by the action by this Board in 1982 to deny a change in his discharge to a medical discharge due to his medical condition.  At that time, the OTSG certified to the Board that he was fit for duty or separation.  This has not changed.

5.  While the Board has taken cognizance of the applicant’s contentions that his discharge was inequitable because it was deceitful, he was coerced (harassed) by his sergeant or that his discharge was based on his lack of job performance due to the extensive injury to his lower left leg, he has failed to provide any substantive evidence to support this claim except his self-authored statement.  Therefore, the Board must presume regularity in the discharge process.  

6.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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

__rwa___  __alr____  __gjw____  DENY APPLICATION

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

INDEX

CASE ID	AR2000045630	
SUFFIX		
RECON		
DATE BOARDED	2001.03.27	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1981/12/04	
DISCHARGE AUTHORITY	AR 635-200 PARA 5-31	
DISCHARGE REASON	A24.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	A126.00	
ISSUES         1.		
2.		
3.		
4.		
5.		
6.