MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           5 September 2002                  
	DOCKET NUMBER:   AR2002070596

	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.  W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 uncharacterized entry level separation be changed to an honorable discharge.

APPLICANT STATES:  In effect, that he should have been separated due to physical disability because he sustained a permanent back injury when washing pots and pans while on kitchen duty.  He herniated three discs.  After bed rest and physical therapy he returned to normal duty but re-aggravated his back condition.  He could have stayed on light duty and received a medical discharge, but he was ostracized by his fellow soldiers and ridiculed by his superiors so he "opted for immediate discharge to seek service-connected disability with the Veterans Administration."  He was told about this option by a headquarters sergeant who "felt badly about the way I was treated by my company commander and others in the chain of command."  He was booted out of the Army with no respect at all for his service to the Nation, except from the VA.  He submits copies of correspondence from the National Personnel Records Center explaining that he is not entitled to the National Defense Service Medal and from the Department of Veterans Affairs (VA) stating that he "is an honorably discharged veteran and has [a] service-connected disability evaluated at 100 percent."

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

The applicant enlisted and entered active duty on 14 April 1992 at the age of 21 years.  He was separated on 1 September 1992 with an uncharacterized entry level separation

The details of his separation are not contained in the available records.  There are no available medical records.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, paragraph 5-31 of that regulation, in effect at the time, provided, in pertinent part, for the separation of personnel because of unsatisfactory performance or conduct (or both).  This policy applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation or self discipline for military service, or that they had demonstrated characteristics not compatible with satisfactory continued service.

Paragraph 3-9 of the regulation specifies that soldiers who are within the first 180 days of their enlistments when separation processing is started will normally receive an uncharacterized entry level separation.  The only authorized exceptions are in those cases where an under other than honorable conditions discharge is authorized and or warranted or when the Secretary of the Army determines on a case by case basis that an honorable discharge is warranted by unusual circumstances involving the individual's personal conduct and performance of duty.  However, such honorable discharges may be applied only in cases involving changes in service obligation, convenience of the Government and secretarial plenary authority.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

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.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The uncharacterized separation is required by regulation since there is no available evidence to show that another type separation is warranted.

2.  There is no available evidence that the applicant was physically unable to perform his duties due to a condition that was incurred or aggravated during the period of service.  

3.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

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

_CLA ___  __MHM__  ___JTM__  DENY APPLICATION

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

INDEX

CASE ID	AR2002070596	
SUFFIX		
RECON		
DATE BOARDED	20020905	
TYPE OF DISCHARGE	UNCHAR	
DATE OF DISCHARGE	19920414	
DISCHARGE AUTHORITY	AR635-200, ch 11 .  .  .  .  .  	
DISCHARGE REASON	A29.00	
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	A93.21	
2.		
3.		
4.		
5.		
6.