MEMORANDUM OF CONSIDERATION

IN THE CASE OF:   

	BOARD DATE:          6 July 2000          
	DOCKET NUMBER:   AR1999030988 

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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 Item 15a (Member Contributed to Post-Vietnam Era) on her DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected by deleting “No “ and adding “Yes.”  She also requests that Item 28 (Narrative Reason for Separation) be changed to show that she was discharged as a result of a medical condition. 

APPLICANT STATES:  In effect, that her records clearly show that she had a medical problem 1 year prior to being discharged.  As a matter of fact, she was discharged for this medical problem.  She submits a Leave and Earnings Statement that shows that she contributed to the Montgomery GI Bill.  She also submits a Department of Veterans Affairs Rating Decision and medical records in support of her request.  

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

That prior to the enlistment under review, the applicant served in the Army National Guard (ARNG) from 30 June 1989 through 12 November 1990.  On 
13 November 1990, she enlisted in the RA for a period of 4 years in pay grade E-3 and her previous ARNG military occupational specialty (MOS) of 
91R (Veterinary Food Inspection Specialist).  On 25 November 1990, she was assigned to Southwest Asia.  

On 26 February 1991, while serving in Southwest Asia, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, was imposed against the applicant for disobeying a lawful order to move all of her equipment into a pup tent and for wrongfully communicating a threat to injure a noncommissioned officer by shooting him on 16 February 1991.  Her punishment included reduction from pay grade E-3 to pay grade E-2 (suspended), forfeiture of $204.00 pay and 14 days extra duty and restriction.

On 15 April 1991, the applicant was reassigned to Fort Bliss, Texas.  On
3 October 1991, NJP was imposed against her for failure to go to her appointed place of duty at the prescribed times on 14 and 29 May, on 14 June and 
9 August 1991.  Her punishment included reduction from pay grade E-3 to pay grade E-2, forfeiture of $197.00 pay (suspended) and 14 days extra duty and restriction.

Between May 1991 and September 1991, the applicant was counseled a total of nine times for such matters as failure to make formation, for being late to formation, for failure to be at her appointed place of duty, for leaving her place of duty, for failure to report to sick call, and for not being in the proper uniform.  

The medical records the applicant submitted show that between August and December 1991, she complained of suffering from stiffness and persistent pain in the left knee.  The pain worsened with climbing stairs, running or sitting through a movie.  There is no evidence of any type of trauma to the knee.  Her 
x-rays showed mild degenerative changes of the joint.  She stated that physical therapy did not help with the pain.  She was treated with Motrin.  

On 19 August 1991, the applicant was given a physical profile for a left knee injury. Her profile stated that she was to walk at her own pace and distance, no running, jumping, marching, crawling, stooping or kneeling.  Her profile expired on 1 October 1991.  There is no evidence that this profile was ever renewed.

On 3 October 1991, the applicant’s commander recommended that the applicant be barred from reenlistment.  He cited the nine counseling statements and the two NJP’s as the basis for the bar.  On 22 November 1991, the bar to reenlistment was approved. 

On 7 November 1991, the applicant authenticated a DA Form 669-1-R (Army Continuing Education System Record Continuation Sheet) in which she acknowledged that she understood that she was not eligible to receive educational benefits and that she would not be reimbursed monies previously paid into the Montgomery GI Bill.

On 25 November 1991, the applicant authenticated a document with her own signature and indicated that she would not appeal the bar to reenlistment.

On 4 December 1991, she requested to be discharged under the provisions of chapter 16, Army Regulation 635-200, due to her perceived inability to overcome her bar to reenlistment.

On 10 December 1991, the applicant’s commander recommended that the request be approved.  On 9 January 1992, the battalion commander recommended approval of the request.  On 14 January 1992, the appropriate separation authority approved the request and directed the issuance of an honorable discharge, due to a locally imposed bar to reenlistment.

The available records do not show that the applicant received a separation medical examination. 

On 13 February 1992, the applicant was separated with an honorable discharge. by reason of a locally imposed bar to reenlistment.  She had completed 1 year,
3 months and 1 day of active service.  She also had 1 year, 6 months and 
14 days prior inactive service.  Item 15a on her DD Form 214 is marked “No”.

On 1 April 1994, a Department of Veterans Affairs (DVA) Rating Decision shows that the DVA determined the applicant was 30% disabled due to patellofemoral syndrome in both knees.  She was granted a 10% disability for the right knee and a 20% disability for the left knee.

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

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligations.  Paragraph 16-5 applies to personnel denied reenlistment and provides that soldiers who receive DA imposed or locally imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar may apply for immediate discharge.  Incident to the request the member must state that he understands that recoupment of unearned portions of any enlistment or reenlistment bonus is required and that later reenlistment is not permitted.  Army policy states that the service of personnel separated under this paragraph will be characterized as honorable.

The Veterans Educational Assistance Program (VEAP) was established and implemented on 1 January 1977, as a contributory education program designed to replace the Vietnam era (pre-1977) GI Bill.  Any soldier entering the service between 1 January 1977 and 30 June 1985 was eligible to participate in the program.  The benefit aspects of the program are operated by the DVA after the soldier is released from active duty.  A “Yes” or “No” entry on the DD Form 214 in item 15a evidenced the soldier’s participation in the program.

The Montgomery GI Bill program, as outlined in Title 38, United States Code, Chapter 30, Section 1411b, provides for soldiers, who entered the service after 30 June 1985, to contribute $1,200 during his or her first 12 months service.  After completion of the soldier’s service obligation, with an honorable characterization of service, he or she is entitled to receive up to $300.00 per month educational benefits for 36 months.  The program is also monitored by the DVA.  No entry is made on the DD Form 214 to show eligibility for the program, rather data entries are made to the Defense Manpower Data Center for use by the DVA in determining the veteran’s eligibility for the program.

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 requested to be discharged due to her perceived inability to overcome her bar to reenlistment.  Her administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.

3.  The medical treatment record/consultation sheets that the applicant submitted show that she was treated for pain in the left knee.  Her physical profile shows that she was not allowed to perform some specific movements.  However, she continued to perform her military duties with these limitations.

4.  The applicant's continued performance of duty raised a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with her separation.

5.  Even if the applicant had received a separation medial evaluation, there is no basis established to presume that she was medically unfit for duty to be separated from active duty.  Her continued performance of duty supports this conclusion.

6.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

7.  The available records show that the applicant was enlisted in the RA after 
30 June 1985.  Therefore, she may be eligible for educational benefits under the Montgomery GI Bill, not the VEAP.  However, the DVA makes the final determination in such cases.

8.  Accordingly, a “No” entry on the DD Form 214 in Item 15a for the VEAP is a correct entry.

9.  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

__cmf___  __emw__  __jpi_____  DENY APPLICATION

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

INDEX

CASE ID	AR1999030988	
SUFFIX		
RECON		
DATE BOARDED	20000706	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19920213	
DISCHARGE AUTHORITY	AR635-200, Chapter 16  	
DISCHARGE REASON	Bar to reenlistment	
BOARD DECISION	(NC)	
REVIEW AUTHORITY		
ISSUES         1.	A112.1000	
2.		
3.		
4.		
5.		
6.		

The medical evidence of record indicates that the applicant was medically fit for retention at the time of her separation.  He has submitted no probative medical evidence to the contrary.