MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 February 2001   
	DOCKET NUMBER:   AR2000047124

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Donald P. Hupman		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 be upgraded to honorable under medical conditions.  

APPLICANT STATES:  In effect, that he was diagnosed him with “Essential Tremor” by a neurologist in 1995.  He contends that he has had this disorder since he was ten or eleven years old, that it is a hereditary disease and it was not diagnosed at a young age or while he was in the Army.  He goes on to state that his everyday activities are effected by this medical condition.  He contends that he requested time off from his Reserve duty due to his medical condition but his request was denied.  He states that he started drinking heavily to control the tremors but he incurred too many traffic violations.  He also contends that if his “Essential Tremor” disorder had been diagnosed in 1983 or before, he would have received an honorable discharge under medical conditions.  In support of his application, he submits a letter of explanation; a copy of National Guard Bureau Form 22 (Report of Separation and Record of Service); DA Form 2-1 (Personnel Qualification Record); separation orders from the Ready Reserve dated 30 April 1985; Army National Guard Retirement Credits Record; Psycho-Social Evaluation dated 28 June 1984; four Progress Notes dated 1984; an unidentified portion of a questionnaire; a medical record dated 25 August 1995; a Release of Information Invoice dated 29 June 2000; a newspaper article titled “Brain implant helps reduce tremors”; and an excerpt from Science & Technology titled “The Human Parts List”.  

COUNSEL CONTENDS:  The American Legion, as counsel for the applicant, reiterated the applicant’s contentions and invited the Board’s attention to the injustice raised by the applicant on his DD Form 149 (Application for Correction of Military Record).  Counsel opines that this submission, in conjunction with the official Army records, amply advance the applicant’s contentions and substantially reflect the probative facts needed for an equitable review.

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

The applicant enlisted in the Army National Guard on 5 May 1979 for a period of six years.  He was ordered to active duty for training on 27 June 1979 and was honorably released from active duty on 6 December 1979 to complete his remaining service obligation.  On 25 March 1983 the applicant was discharged with a general discharge from the Indiana Army National Guard for continued absence from drill (nine unexcused absences) under the provisions of National Guard Regulation 600-200, chapter 7.  The applicant was not separated as a Reserve of the United States but was transferred to the USAR Control Group (Annual Training).  On 4 May 1985 the applicant was discharged under the provisions of Army Regulation 135-178 from the Ready Reserve with a general discharge.  

There is no evidence in the available records which shows that the applicant had a medical condition prior to his discharge.  

Upon his enlistment, the applicant underwent a medical examination on 5 May 1979 and was found qualified for service with a physical profile of 111111.  When the applicant was released from active duty training he underwent a medical examination on 1 November 1979 and was cleared for separation with a physical profile of 111111.    

Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) governs service obligations of members of the Reserve Components.  This regulation states that a member is an unsatisfactory participant when he or she accrues nine or more unexcused absences from scheduled drills occur during a one year period.

National Guard Regulation 600-200 (Enlisted Personnel Management), in effect at the time, sets forth the basic authority for the personnel management of enlisted personnel of the Army National Guard (ARNG).  Chapter 7, paragraph 
7-10 provides for discharge from the Army National Guard of the State only for enlisted personnel with a remaining Reserve service obligation.  This paragraph also states, in pertinent part, that unless transferred to the Inactive National Guard, an enlisted member who has a remaining Reserve obligation may be discharged from the Army National Guard for continuous and willful absence from military duty.  If discharged for this reason, a soldier may be transferred to the Inactive National Guard at the option of the State Adjutant General or, if discharged from the Army National Guard of the State only, to the USAR Control Group (annual training).  

Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  
Chapter 6 of this regulation, in effect at the time, governed separation for unsatisfactory performance.  The service of a member separated under this chapter will be characterized as honorable or under honorable conditions as warranted by his or her military record unless separated while in entry level status.        

Army Regulation 135-178, Chapter 7, Section I in effect at the time, governed separation for misconduct.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.  An honorable characterization of service is not authorized for a member who has completed entry level status unless the member’s record is otherwise so meritorious that any other characterization would clearly be inappropriate.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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 orders separating the applicant from the Ready Reserve, dated 
30 April 1985, do not specify which chapter of Army Regulation 135-178 was the basis for his discharge.  Chapters 6 (Unsatisfactory Performance) and 
7 (Misconduct) of Army Regulation 135-178 may authorize a general discharge. 

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

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

4.  Although the applicant contends that he has been suffering with “Essential Tremor” since he was ten or eleven years old, he has not provided any evidence to support this contention.  

5.  His contention that this medical condition was not diagnosed while he was in the military, appears to be valid.  The available records do not contain a separation medical examination rendered at the time of his separation.  However, his records do contain an entrance medical examination for his enlistment in the Army National Guard wherein he was found qualified for service.  Also, a separation medical examination was conducted when he was released from active duty training and he was cleared for separation.

6.  There is no evidence of record, and the applicant has provided no convincing evidence, which shows that he incurred a medical condition while serving in the Army National Guard or in the USAR.  
 
7.  The Board reviewed the applicant’s record of service and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel, particularly in view of his failure to attend drill.  Therefore, he is not entitled to an honorable discharge with medical conditions.
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

JHL_____  GDP____  DPH_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000047124	
SUFFIX		
RECON		
DATE BOARDED	20010208	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19850504	
DISCHARGE AUTHORITY	AR 135-178  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.