MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            1 March 2000                  
	DOCKET NUMBER:   AR1999029817

	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.

	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. John Saputo		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, that his discharge be upgraded to honorable, and that he be given a disability separation or retirement.  

APPLICANT STATES:  That he was being prepped for a medical review board to determine whether his injuries to his back and knees were disqualifying for further military service, when a general urinalysis screen showed him as positive for drugs, this caused his unit commander to change his discharge preparation from disability to punitive; and resulted in him being issued a general under honorable conditions discharge.  In support of his request the applicant submits copies of his DD Form 214, his VA claim for rate increase, and a certificate of achievement awarded for his service in Panama. 

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

On 15 June 1987, he enlisted in the Regular Army for a period of 4 years.  He completed basic and advanced individual training at Fort Bliss, Texas.  

On 22 November 1988, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniformed Code of Military Justice (UCMJ), for disobeying a lawful order by entering a restricted area.  His punishment was forfeiture, restriction, extra duty and reduction to pay grade of E-3. 

On 4 May 1990, the applicant was counseled for harassing females at the University of California at Santa Cruz.

In June 1990, the applicant injured his knee while playing football during physical training (PT).  On 9 October 1990 a line of duty investigation determined the injury occurred in the line of duty.

On 16 August 1990, the applicant accepted NJP, under the provisions of Article 15, UCMJ for the wrongful use of cocaine, the use of which was detected by biochemical testing of a urine sample that he submitted to military authorities on 29 May 1990.  His punishment was forfeiture, restriction, extra duty and reduction to pay grade of E-2.

On 12 September 1990, the applicant was counseled for disobeying a direct order given by his battalion commander.

On 25 September 1990, a Mental Status Evaluation cleared the applicant for any administrative action deemed appropriate by the command.

On 10 October 1990, the applicant’s company commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct.  His recommendation was based on the applicant’s 2 Article 15’s, one for cocaine use and the other for entering an off limits area; and he was counseled for disobeying a lawful order, and for harassing females at the University of California at Santa Cruz. 

On 10 October 1990, after consulting with legal counsel, the applicant acknowledged that he understood his rights and the substantial prejudices he could encounter in civilian life if a general discharge was issued to him.  He acknowledged that he was not entitled to have his case heard by a board of officers, declined representation by counsel, and submitted a statement on his own behalf. 

On 22 October 1990, the appropriate separation authority approved the applicant’s separation under the provisions of Army regulation 635-200, paragraph 14-12c, for the commission of a serious offense, and directed the issuance of a general discharge certificate.

On 30 November 1990, the applicant was discharge under the provisions of the above cited regulation.  His Report of Separation indicates he had 3 years, 5 months and 16 days of active Federal service.

Subsequent to his separation the applicant was granted a service connected disability rating of 40 percent from the VA, effective 1 January 1991, with an increase to 60 percent effective 1 April 1992.  

On 24 February 1997, the Army Discharge Review Board (ADRB) denied the applicant’s request to change the authority and characterization of his discharge, however the board did elect to modify the narrative reason for separation from Misconduct-abuse of illegal drugs, to misconduct.  This modification was granted because current regulations list the reason for the applicant’s discharge as misconduct, and it would substantially enhance his right to seek employment.

Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a solider is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurring immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty. 

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.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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.  

2.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

3.  The fact that the VA granted a service connected disability rating does not necessarily demonstrate any error or injustice by the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its reason or authority for separation.  Although the applicant's service medical records noted his chronic knee pain, his continued performance of duty until his discharge from active duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

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

___gdp__  __mmd__  ____js___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029817	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000301	
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.	110.00	
2.		
3.		
4.		
5.		
6.