MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           17 October 2000                  
	DOCKET NUMBER:   AR2000046778

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Linda D. Simmons		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 previous application to correct his records by changing the reason for separation to physical disability.

APPLICANT STATES:  In effect, that the previous Board did not consider all the good things in his record.  It only considered the bad things.  He states that he received a prior honorable discharge, a Good Conduct Medal and several letters of appreciation or commendation.  He knows veterans who are not as sick as he who receive 100 percent disability.  He submits a 9 April 1999 Department of Veteran Affairs (VA) rating to substantiate his case.  He states that he would like to appear before the Board.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case on 7 June 2000 (COPY ATTACHED).

The applicant’s submission is new evidence that warrants Board consideration.

The VA rating shows that the applicant is rated as service connected at 40 percent for low back pain, 20 percent for the residuals of a right ankle fracture, 30 percent for skin conditions and 10 percent for sinusitis.  Service connection or a compensable rating was denied for 10 other conditions.

Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides in paragraph 4-3 that an enlisted soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority (GCMCA) may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation.   This authority may not be delegated.  A copy of the determination must be entered into the case file when it is forwarded.  

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 discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.  The positive aspects of his service were recognized and the mitigation arising from that service was applied by the issuance of a general discharge.
 
2.  The applicant was retained on active duty so that he could receive medical treatment.  However, he was being processed under regulatory provisions that could have resulted in an other than honorable discharge.  Absent an affirmative finding by the GCMCA that his medical problems were a cause of his misconduct or his case was otherwise unusually meritorious, he could not have been processed for disability separation.

3.  Formal hearings are granted only when the Board determines that a case is so complex, or the records so incomplete that only sworn testimony can provide the necessary information.  The applicant’s case does not meet these criteria.
  
4.  Prior to reaching a determination that it was not in the interest of justice to excuse the failure to timely file, the Board looks at an entire file.  The Board considers the statute of limitations only after all other aspects have been considered and it has been concluded that there is no basis to recommend a correction of the records.  When the Board determines that an error or injustice exists, it routinely recommends relief in spite of a failure to submit the application within the 3-year time limit.  Although the decisional document may not state that the Board considered the merits of the case, the display of the pertinent details of applicant’s service record, the circumstances of the case and the regulations governing the issue tend to show that it did.  The Board does not deny applications simply because they were not submitted within 3 years. 

5.  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.

6.  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

__RVO__  ___BJE__  ___LDS _  DENY APPLICATION

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

INDEX

CASE ID	AR2000046778	
SUFFIX		
RECON		
DATE BOARDED	20001017	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.	A93.15	
3.	A94.01	
4.		
5.		
6.