MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           7 February 2002                  
	DOCKET NUMBER:   AR2001061666

	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	
	Ms. Margaret K. Patterson		Member	
	Mr. Lester Echols		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 for unsuitability be corrected to an honorable discharge for medical disqualification.

APPLICANT STATES:  That his general discharge for unsuitability is in error.

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

He enlisted in the Regular Army on 17 October 1969, was awarded the military occupational specialty of stock accounting specialist, was assigned to Europe, and was promoted to pay grade E-4.

While on active duty he was placed on physical profile restrictions twice; once for an injury to an old surgical scar, and the other for dehydration.  He was also treated on an outpatient basis for stomach pain, upper respiratory infection, and breathing problems.  On one occasion on 26 March 1971, while the applicant was being treated for difficulties breathing and an ache from the waste down, the applicant admitted that he had “shot some opium [intravenously] 3 days ago.”

In August 1971 the applicant was admitted to a military hospital for serum hepatitis.

On 13 September 1971 the applicant was admitted to a military hospital once again for nausea and general malaise and dark urine.  At that time he admitted that he was still using drugs intravenously.

On 18 November 1971 the applicant’s commander notified him of his intent to recommend his discharge for unsuitability, and of his rights in conjunction with that recommendation.  The applicant waived his rights.

The applicant was then given a mental status evaluation in which he was determined to be mentally sound.  The applicant then underwent a separation physical examination in which he was determined medically qualified without any physical profile restrictions.  The examining physician stated on his SF Form 89, Report of Medical History, that “No significant past medical history except episode of viral hepatitis – now no problem.”

On 22 November 1971 the applicant’s commander submitted his recommendation to discharge the applicant.  His commander related how the applicant had been counseled about his attitude towards his work and the Army on 11 occasions.

The applicant’s commander’s recommendation was approved by the appropriate authority and the applicant was issued a General Discharge Certificate for unsuitability on 17 January 1972.

Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, for discharge due to unsuitability because of apathy of those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.    In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career. 

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Title 10, United States Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

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.  The applicant was determined medically qualified during his separation physical examination.  The physician conducting that examination had been aware of the applicant’s hepatitis when he made that determination.

2.  Without a finding of medical disqualification, there was no basis to refer the applicant to a PEB or to consider him for a medical retirement.

3.  As such, his discharge for unsuitability was appropriate and there is no reason to change it.

4.  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

___bje___  ___mkp _  ___le___  DENY APPLICATION

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

INDEX

CASE ID	AR2001061666	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020207	
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.