MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            6 June 2002
	DOCKET NUMBER:   AR2002071886

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Thomas E. O’Shaughnessy, 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:  That his administrative discharge be changed to a medical discharge.

APPLICANT STATES:  That upon his discharge he was diagnosed with the Human Immunodeficiency Virus (HIV).  He provides no supporting evidence.  His service medical records are not available.

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

He enlisted in the Regular Army on 30 March 1994.  He completed basic training and advanced individual training and was awarded military occupational specialty 75D (Records Specialist).  

On 5 May 1995, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty.  His punishment was 14 days of restriction, 14 days extra duty, and a reduction in pay grade to E-2 (suspended).  On 24 May 1995, the suspended reduction was vacated after he broke restriction.

The applicant received six counseling statements between 5 April and 8 June 1995 for failing to report to platoon formation, failing to report to work, failing to report to physical training, failing to report to morning formation, violating restriction, and being absent without leave (AWOL) from 31 May – 5 June 1995.

On 8 June 1995, a psychiatric evaluation diagnosed the applicant with Adjustment Disorder and Personality Disorder.

On 16 June 1995, the applicant’s commander initiated separation action under the provisions of Army Regulation 635-200, paragraph 5-13, Personality Disorder.

On 20 June 1995, the applicant was advised by consulting counsel of the basis for the proposed action.  He elected not to submit a statement in his own behalf. 

The appropriate authority approved the recommendation and directed the applicant be discharged with an Honorable Discharge Certificate. 

On 25 July 1995, the applicant was discharged, with an honorable characterization of service, in pay grade E-2, under the provisions of Army Regulation 635-200, paragraph 5-13, personality disorder.  He had completed    1 year, 3 months, and 21 days of creditable active service and had 5 days with no lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-13 sets the policy and prescribes procedures for separating members with a personality disorder (not amounting to a disability) that interferes with assignment to or performance of duty when so diagnosed by a physician trained in psychiatry and psychiatric diagnosis.   

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  

Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 3-7h states that HIV confirmed antibody positivity, with the presence of progressive clinical illness or immunological deficiency is a cause for referral to a medical evaluation board.  Paragraph 3-35 states that personality, sexual, or factitious disorders; disorders of impulse control not elsewhere classified; and psychoactive disorders may render an individual administratively unfit rather than unfit because of physical disability.  Interference with performance of effective duty in association with these conditions will be dealt with through appropriate administrative channels.  Paragraph 3-36 states that adjustment disorders (i.e., transient, situational maladjustments due to acute or special stress) do not render an individual unfit because of physical disability but may be the basis for administrative separation if recurrent and causing interference with military duty.

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 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.

2.  The applicant was diagnosed with a personality disorder.  By regulation, interference with performance of effective duty in association with these conditions will be dealt with through appropriate administrative channels.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. 

3.  There is no evidence of record and the applicant provides none to show when he was diagnosed with HIV.  In the absence of evidence to show when he was diagnosed with HIV, what his symptoms were and at what point in time as relating to his military service, the Board presumes he was appropriately separated with an administrative, rather than a medical, discharge.

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

_SK___  ___JTM__  __TEO____  DENY APPLICATION

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

INDEX

CASE ID	AR2002071886	
SUFFIX		
RECON		
DATE BOARDED	2002/06/06	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.