MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:              19 April 2000
	DOCKET NUMBER:      AR1999030766

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Elzey J. Arledge		Member	
	Mr. Van B. Cunningham		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 honorable discharge be changed to a medical retirement.

APPLICANT STATES:  In effect, that he was discharged under the Qualitative Management Program (QMP) and was unjustly denied reenlistment after serving 15 years and 2 months.  He also states that, based on the findings of the Veterans Administration Disability Board, his discharge should be changed to medical retirement.

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

He was inducted on 15 November 1966 as a light weapons infantryman and
continued to serve through a series of continuous reenlistments.

On 28 April 1978 the Calendar Year 1978 Sergeant First Class Selection Board determined that the applicant should be barred from reenlistment under QMP.  The bases for the determination were marginal performance reflected by a below average enlisted efficiency report weighted average (EERWA), below average number of correct responses to the written military occupational specialty (MOS) test, below average MOS evaluation scores and incidents of nonjudicial punishment.  The applicant elected to submit an appeal.

On 18 May 1978, the applicant submitted a request for reconsideration and removal of the DA-Imposed Bar to Reenlistment under QMP within the 30-day timeframe.  On 25 July 1978, the applicant’s request was forwarded to the Commander, US Army Military Personnel Center (MILPERCEN) recommending approval of the applicant’s request for reconsideration of his DA-Imposed Bar to Reenlistment.  On 3 November 1978, the MILPERCEN Army Reenlistment Appeals Board (RAB) disapproved the applicant’s request.  The RAB stated that the applicant’s overall performance is still below the standards expected of a careerist.  The RAB further stated that the applicant will separate at the expiration of his term of service (ETS) scheduled on 8 April 1983 and that he has sufficient time remaining on his current enlistment to enhance his competitive position.

The applicant was honorably discharged on 8 April 1983 under the provisions of Army Regulation 635-200, chapter 4, due to his ETS. He had completed 
16 years, 4 months and 22 days of creditable service.

The applicant’s service medical records and VA records are unavailable for review by the Board.

Army Regulation 600-200, chapter 4, sets forth policy and prescribes procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  It is designed to (1) enhance quality of the career enlisted force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service.  The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening
subprogram.  Under the qualitative screening subprogram, records for grades
E-5 through E-9 are regularly screened by the DA promotion selection boards.  The appropriate selection boards evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted.  Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligation which includes bars to reenlistment.

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

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.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

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.

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 noted the applicant’s contentions that he was discharged under QMP and was unjustly denied reenlistment.  However, evidence of record shows the applicant was properly considered by a selection board which determined he should be barred from reenlistment under QMP.  The applicant appealed this action, but was denied.  The applicant also continued to serve for almost 5 years after the QMP action during which time he could have overcome the bar to reenlistment by improved performance.  Therefore, the applicant was not unjustly denied reenlistment in view of the opportunities he had to appeal and to overcome this bar to reenlistment.

2.  The Board noted the applicant’s contention that his discharge should be change to medical retirement.  His records show he was discharged for expiration of his term of service.  

3.  The applicant’s service records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.

4.  There is no evidence the applicant entered the physical disability process prior to his discharge.  There also is no evidence the applicant was diagnosed by a medical evaluation board (MEB) or was found unfit by a physical evaluation board (PEB).

5.  The applicant’s separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

6.  The type of discharge directed and the reasons therefor were appropriate considering all of the facts of the case.

7.  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 the aforementioned requirement.

8.  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:

JPH_____  EJA____  VBC ____  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030766	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000419	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19830408	
DISCHARGE AUTHORITY	AR 635-200, C, 4	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189		
2.		
3.		
4.		
5.		
6.