MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  6 September 2001
	DOCKET NUMBER:  AR2001057205

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Melvin H. Meyer		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 bad conduct discharge be upgraded and that he receive eligibility for Department of Veterans Affairs (DVA) disability benefits.

APPLICANT STATES:  That after he was promoted to the pay grade of E-4, he was diagnosed with a cartilage disease in his knees and eventually given a permanent profile.  He was supposed to be reassigned out of his infantry military occupational specialty (MOS) but it never happened.  He was continually required to perform duties in violation of his profile.  He was harassed about his profile and felt he was being punished for having an injury.  He was bitter and angry and eventually assaulted another soldier.  He was court-martialed and sentenced to confinement.  If he had been reclassified, he never would have received a bad discharge.

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

He enlisted and entered active duty on 16 June 1975.  He completed infantry training and was assigned to Germany.  On 29 October 1976, he was punished under Article 15, of the Uniform Code of Military Justice (UCMJ) for marijuana possession.  He was promoted to the pay grade of E-4 effective 1 December 1976.  On 7 June 1977, he was punished under Article 15, of the UCMJ for failure to obey a lawful command of a commissioned officer.  The punishment imposed included reduction to the pay grade of E-3.

On 25 January 1979, the applicant was convicted by a general court-martial of assault with intent to inflict grievous bodily harm.  The approved sentence included reduction to the pay grade of E-1, confinement for 1 year, and a bad conduct discharge.  Effective 9 November 1979, the applicant was discharged under other than honorable conditions as a result of trial by court-martial.  He had 3 years, 7 months, and 9 days creditable service and 313 days lost time due to confinement.

The available medical records show that in April 1976, the applicant was treated for knee pain which he claimed he had experienced for over 1-year.  He was provided with a 7-day temporary profile on 6 August 1976.  He was given 30-day profiles on 21 February, 2 March, 9 May, and 20 June 1977.  On 30 June 1977, a Medical Evaluation Board (MEB) granted the applicant a permanent “2” profile under lower extremities for his knees.  The MEB also determined that he was fit for duty within his assignment limitations and that his command should determine the proper MOS. On 3 February 1978, another MEB changed his permanent profile to “3” and continued to find him fit for duty within his assignment limitations.

On 7 September 1979, while in a prisoner status, he had an operation performed on his left knee.  A 31 October 1979 entry on a Chronological Record of Medical Care by the orthopedic clinic, states that the applicant’s incision was well healed and he had no discomfort similar to the prior symptoms.

Title 38, United States Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The Army does not determine who is eligible for treatment or disability benefits from the DVA.  The DVA, in accordance with its own policies and regulations, awards compensation to honorably separated veteran’s solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

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 contentions of the applicant have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the evidence of record.  There is no evidence that the applicant was required to be reclassified out of his infantry MOS or that he was assigned duties in violation of his various profiles when they were in effect.

2.  The DVA is solely responsible for determining a veteran’s eligibility for medical treatment and disability compensation controlled by that Department.

3.  The applicant’s bad conduct discharge as a result of trial by court-martial appropriately characterizes his service.  There is no basis to upgrade his discharge.

4.  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.

5.  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

__ls___  ___jm___  __mm____  DENY APPLICATION

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

INDEX

CASE ID	AR2001057205	
SUFFIX		
RECON		
DATE BOARDED	20010906	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19791109	
DISCHARGE AUTHORITY	AR 	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.