MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            27 March 2001                  
	DOCKET NUMBER:   AR2000047112

	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. Wanda L. Waller		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:  In effect, that his general discharge be changed to an honorable discharge under medical conditions; that he be entitled to Army retirement; that a bar to reenlistment be removed; and that his rank and pay be restored. The applicant also requests unemployment compensation and compensation by the Department of the Veterans Affairs (DVA) and special compensation as a disabled veteran from the DVA.

The applicant’s requests to change his general discharge to an honorable discharge under medical conditions; to grant entitlement to Army retirement, to remove a bar to reenlistment and to restore his pay are requests for reconsideration because the applicant raised the same issues in his application to the Army Board for Corrections of Military Records (ABCMR), dated 2 May 1987.  The request to restore the applicant’s rank is a new issue.

The applicant’s request for unemployment compensation is a matter handled by the state in which the applicant is a resident.  Disability compensation is a matter within the purview of the DVA.  Special compensation for disabled veterans is a matter under the purview of both the DVA and the Social Security Administration. As such, the ABCMR does not have jurisdiction over the applicant’s requests for unemployment and disability compensation or special compensation for disabled veterans; therefore, these requests by the applicant are not discussed further in this Memorandum of Consideration. 

APPLICANT STATES:  The applicant submitted four applications.  In his application dated 22 May 2000, the applicant states, in effect, that he did not have a pre-existing injury to his left hip prior to his entrance into the Army, but was injured while in the service.  He also contends that medical x-rays were never taken, that medical opinions and treatment were not observed and that his discharge was flawed.  He contends that the Article 15’s were misused, that his rank is in error, the malingering conduct was unjustified and the special compensation for disabled veterans was overlooked.  In support of this application, he submits an undated seven page letter of explanation and a five page letter from his attorney, dated 10 November 2000, to the Board of Veterans Appeal.

In his application dated 1 September 2000, the applicant reiterates his contentions in his first application.  He also states that the perpetrators were brought to justice and that his rank was purposely withheld by his chain of command.  In support of this application, he submits a copy of a Disabled American Veterans letter, dated 31 July 2000; a copy of a letter, dated 
28 October 1999, from the Chief of the Screening Team at the Army Review Boards Agency; VA Form 21-4138 (Statement in Support of Claim) dated 
16 August 2000; a medical record, dated 3 June 2000; a letter, dated 7 June 2000, from the applicant to his doctor; a letter, dated 30 June 1999, from the Social Security Administration; an undated Supplemental Statement to DVA documentation; a copy of a Statement of Representative in Appeals Case letter dated 14 May 1999; a letter, dated 16 August 1993, from a physician at the Falls Medical Group in Milwaukee, Wisconsin; an Orthopedic Examination dated 1 July 1985; page five of the DVA decision on the applicant’s appeal; two undated pages of the applicant’s Supplemental Statement to the DVA; medical records, dated 2 October 1984, 13 February 1985 and 21 August 1984; a Compensation and Pension Exam Report dated 16 May 1997 and Radiology Consultations dated 16 May 1997 and 13 May 1997.                  

In his application dated 27 November 2000, the applicant again reiterates his original contentions noted in his first application.  He also states that the DVA failed to define a medical condition and did not consider his sick call reports during 1984.  In support of this application, he submits a six page letter of explanation; Compensation and Pension Examination dated 26 January 1999; page two of a Compensation and Pension Exam Request dated 6 January 1999; an undated medical evaluation of the applicant’s left hip; a Radiology Consultation dated 7 January 1999; page four of an undated DVA document; and DVA Compensation and Pension Examination dated 16 May 1997.

In his application dated 29 December 2000, the applicant requests that the Board again consider the evidence already submitted in his previous applications.  He also states that his discharge does not reflect his disposition after discharge and that prejudice was prevalent in his chain of command.  In support of this application, he submits a letter of explanation and Progress Notes from the DVA dated 4 December 2000.   

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

During the applicant’s entrance processing, medical evidence of record, dated
23 March 1982, shows that the applicant was diagnosed with fracture left iliac bone, with sprain, left hip, on 5 November 1976, at age 15. 

The applicant enlisted on 29 December 1982 for a period of 3 years and trained as a cavalry scout.  

On 19 April 1984 nonjudicial punishment was imposed against the applicant for failure to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to pay grade E-2 (suspended), a forfeiture of pay and restriction (suspended) and extra duty. 

On 11 September 1984 a bar to reenlistment was imposed against the applicant based on AWOL, misconduct and unsatisfactory performance.

On 18 October 1984 nonjudicial punishment was imposed against the applicant for disobeying a lawful order and being disrespectful in language and deportment toward a sergeant first class.  His punishment consisted of a reduction to pay grade E-2, a forfeiture of pay and extra duty.  

The applicant’s records also contain numerous counseling statements for various infractions during the period 11 October 1983 to 10 October 1984.
 
On 21 November 1984 the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The unit commander recommended separation with a general discharge and cited the applicant’s apathetic attitude and poor military performance.

The applicant consulted with counsel, was advised of his legal rights and elected to submit a statement on his behalf.  However, no statement was available to the Board.

Prior to discharge, on 1 November 1984, the applicant underwent a mental status evaluation and medical examination and was cleared for separation with a physical profile of 111111.

The separation authority approved the recommendation for discharge and directed the issuance of a general discharge.  

Accordingly, the applicant was discharged in pay grade E-2 on 14 December 1984 with a general discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served 1 year, 11 months and 16 days of total active duty.

On 30 October 1991 the Army Discharge Review Board denied the applicant’s request for a discharge upgrade to honorable.

Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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 601-280 prescribes the eligibility criteria and options available in the Army Reenlistment Program.  Chapter 6 of that regulation provides for barring from reenlistment individuals whose continued active duty is not in the best interest of the military service. This chapter specifies that bars will be used when immediate administrative discharge from active service is not warranted.  Examples of rationale for reenlistment disqualification are, but are not limited to, AWOL, indebtedness, recurrent nonjudicial punishment, slow promotion progression, no demonstrated potential for future service, and substandard performance of duties.

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 Board considered the applicant’s contention that he did not have a pre-existing injury to his left hip prior to his entrance into the Army, but was injured while in the service.  However, during the applicant’s entrance processing in March 1982, medical evidence of record disclosed that at age 15 the applicant was diagnosed with fracture left iliac bone, with sprain, left hip. 

2.  The applicant’s other contentions were also noted by the Board; however, they are not supported by either evidence submitted with the application or the evidence of record.  

3.  The applicant was on active duty from 29 December 1982 to 14 December 1984.  Service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for separation with a physical profile of 111111.  Accordingly, the applicant was separated from active duty for unsatisfactory performance, not as the result of a medical condition or physical disability.
4.  The Board concludes that the applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation. 

5.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication or procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6.  The applicant’s bar to reenlistment was appropriate and imposed in accordance with pertinent regulations and there is no reason to remove it from his records.

7.  Evidence of record shows that the applicant was reduced to pay grade E-2 due to misconduct on 18 October 1984.  His DD Form 214 with an effective date of 14 December 1984 shows his pay grade as E-2.  Therefore, there is no basis to change his pay grade and the applicant is not entitled to back pay or allowances.

8.  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.

9.  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	AR2000047112	
SUFFIX		
RECON		
DATE BOARDED	20010327	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19841214	
DISCHARGE AUTHORITY	AR 635-200 Chapter 13 	
DISCHARGE REASON	Unsatisfactory Performance	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.	136.0000	
3.	100.0600	
4.	100.0200	
5.	128.0000	
6.