MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           13 September 2001                  
	DOCKET NUMBER:   AR2001059667

	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. Edmund P. Mercanti		                         Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. John E. Denning		Member	
	Ms. Terry L. Placek		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 separation papers show that he served at least 8 more days of active duty.

APPLICANT STATES:  His doctor said he was unfit for civilian life and should be retained on active duty until he either received a pension from the Army or his mental condition improved.

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

He enlisted in the Regular Army on 1 August 1996.

On 15 October 1996 the applicant was counseled by his first sergeant that he was being recommended for an entry level status (ELS) performance and conduct separation.  In that counseling the first sergeant outlined how the applicant had been referred to the Department of Veterans Affairs (DVA) hospital for observation by the Behavior Medicine Clinic at Ireland Army Hospital, and was transferred from the DVA hospital to Wright Patterson Army Hospital for further treatment.  The first sergeant then summarized the conversation he had with the applicant, which included the applicant’s statement that he had the mental problem prior to enlisting, and that he would accept an ELS discharge since it was the quickest way to be discharged.  The applicant signed the counseling form and circled the block indicating that he concurred with the contents of the counseling session.

The applicant was then formally notified of his commander’s intent to recommend his discharge, he did not contest that recommendation, and the appropriate authority approved that recommendation.

On 22 October 1996 the applicant was given an uncharacterized discharge under the provisions of Army Regulation 635-200, chapter 11.

In 1982 the Department of Defense directed the various military departments to implement a new separation program, effective 1 October l982.  This program essentially provides for the separation, in ELS, of new personnel who are recommended for separation during their initial 180 days of service, usually due to their inability to complete their training.  These personnel will be granted an uncharacterized discharge, unless they are being discharged for misconduct wherein a discharge under other than honorable conditions is warranted.  An honorable discharge will be granted to personnel in ELS only if their service is so

outstanding as to warrant an exception to policy by the service secretary concerned.  Army Regulation 635-200, chapter 11 provides for ELS discharges for Army personnel.

Army Regulation 635-40, paragraph 3-2, specifies that a presumption will be made that a soldier was in sound physical and mental condition upon entering active service except for physical disabilities noted and recorded at the time of entry, and that any disease or injury discovered after a soldier entered active service, with the exception of congenital and hereditary conditions, that was not due to the member’s own misconduct, will be considered in line of duty.  Paragraph 4-19b of this regulation states that a Physical Evaluation Board (PEB) may decide that a soldier’s physical defect Existed Prior to Service (EPTS), but must then determine whether the condition was aggravated by military service.  If the PEB determines that a soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service.  The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  By his own admission, the applicant’s mental illness existed prior to his entry in the military. 

2.  The presumption of medical fitness at the time of enlistment only holds true if the enlistee honestly lists all of his or her medical history on the entry physical health questionnaire.  Since it would appear that the applicant concealed his history of mental illness, the presumption of fitness does not apply in his case.  

3.  Since the applicant’s mental illness was not service connected, the Army had no obligation to retain him on active duty to provide medical treatment.  For the same reason, law and regulation prohibited the Army from giving him a separation due to physical unfitness (e.g., pension).

4.  It is noted that the applicant had consented to an ELS separation because it was the quickest way to be discharged.  The applicant, not the Army wanted his separation expedited.

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

___tlp ___  ____fne _  ___jed___  DENY APPLICATION

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

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010913	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.