MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 April 2002
	DOCKET NUMBER:   AR2001065389

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Donald P. Hupman, Jr.		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, reconsideration of his request that his under other than honorable conditions (UOTHC) discharge be upgraded.

APPLICANT STATES:  In effect, that the original consideration of his case by the Board, that was summarized in a Memorandum of Consideration (MOC), case number AR2001060996, dated 23 October 2001, did not include consideration of medical documents that are now provided as new evidence.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records that were summarized in MOC AR2001060996, dated 
23 October 2001, which was prepared to reflect the Board’s original consideration of this case. 

The applicant provides a Medical Condition-Physical Profile Record (DA Form 3349), dated 24 November 1976, and medical treatment records confirming treatment for minor illnesses between February and August 1978.  This is considered as a submission of new evidence that requires reconsideration by the Board.  

The DA Form 3349 provided by the applicant confirms, he was issued a permanent three (P-3) profile on 24 November 1976, based on the softening of his knee cap cartilage with loose ligaments in the left knee that followed his injury and surgery.  In addition, he provides copies of medical treatment records that confirm treatment for minor illnesses such as colds and flu type symptoms and for his knee injury on about five different occasions between February and August 1978.  

In its original consideration of this case, the Board noted that the applicant’s platoon leader confirmed, in a statement attached to a nonjudicial punishment action imposed on the applicant in May 1978, that in effect, the applicant had come to the unit as a rehabilitation transfer in possession of a P-3 profile which had been downgraded to a temporary two (T-2) profile.  

The Board also concluded that the evidence of record confirmed that the applicant’s medical problems were not contributing factors to his numerous acts of misconduct.  Finally, it determined that the type of discharge directed and the authority and narrative reason for that discharge were appropriate considering all the facts of the case and it concluded that the applicant had failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice and therefore, relief was not warranted. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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 notes the applicant’s contention that his UOTHC discharge should be upgraded because his medical problems impaired his ability to serve and it carefully considered the new medical evidence he submitted with his application. 

2.  However, in the opinion of the Board, the new evidence provided by the applicant only confirms what was already known and considered by the Board in its original consideration of the case.  The DA Form 3349 provided only shows that he held a P-3 profile on 24 November 1976, and it does not contest the information that was already a part of the record, which was that he had held a 
P-3 profile that had been downgraded to a T-2 profile.  

3.  In addition, the Board finds that the medical treatment records provided only show treatment for minor illnesses and it concludes that they do not show that the applicant’s physical condition impaired his ability to serve or that they were contributing factors for his extensive misconduct.  

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__RVO__  __RJW__  __DPH__  DENY APPLICATION

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

INDEX

CASE ID	AR2001065389	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/04/09	
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.	108.0000	
2.		
3.		
4.		
5.		
6.