MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           26 April 2000                   
	DOCKET NUMBER:   AR1999032059

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Curtis L. Greenway		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, physical disability discharge or retirement.  

APPLICANT STATES:  That when he arrived at Fort Gordon, he had a somewhat favorable limp to his left leg, and during in processing they were asked if anyone wanted a discharge, and when he was informed that he could receive a medical discharge he raised his hand.  He never received the medical discharge. He has an appeal to a claim with the VA for a nonservice connected disability pension; however, he lacks legal entitlement to this pension because his period of service was less than 90 days.  The applicant implies that the signature on his DD Form 214 is not his, but a forgery.

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

A 10 February 1975 report of medical examination taken at the AFEES in Boston, indicates that the applicant was medically qualified for enlistment with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history, he furnished for the examination, the applicant listed four problems that he had or had had, frequent or severe headaches, eye trouble, severe tooth or gum trouble, and loss of finger or toe.  The examining physician stated that he was in good health.  

The applicant enlisted in the Army Reserve (Delayed Entry Program) for 6 years on 20 February 1975.  He was discharged from that program upon his enlistment in the Regular Army for 3 years on 7 April 1975.  

A 21 April 1975 clinical record indicates that the applicant had numerous personal problems of which he was trying to manifest into physical illnesses.

On 17 June 1975 the applicant’s commanding officer notified the applicant that he was initiating action to discharge him because of his inability to accept and follow instructions as evidenced by his failure to appear for formations and the requirement for constant supervision by his platoon sergeant.  That officer stated that the applicant lacked the sense of responsibility which was so vital to a soldier if he was to be effective, evidenced by his failure to perform mandatory duties or to notify the proper authority when he failed to do so.  His negative attitude toward authority and his apathetic attitude about the Army made him a liability rather than an asset to the Army. 

The applicant consulted with counsel, stated that he did not want to have counsel assist him in explaining the discharge procedures or in making statements or rebuttal on his behalf.  He stated that he did not desire to have a separation medical examination, and did not desire to make statements or submit a rebuttal in his behalf.  He stated that he understood that due to noncompletion of requisite active duty time, VA and other benefits normally associated with completion of honorable active service would be affected.  He also stated that under the provisions of the Trainee Discharge Program, he would be unable to reenter the Armed Forces for a period of 2 years from the date of his discharge.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged.  The separation authority approved the recommendation on 24 June 1975.

He was discharged at Fort Gordon, Georgia on 27 June 1975, under the provisions of the Trainee Discharge Program.  He had 2 months and 21 days of service.  He signed a form on 27 June 1975 stating that to the best of his knowledge there had been no change in his medical condition since his last  examination.  

The applicant enlisted in the Rhode Island Army National Guard on                    24 January 1979 and was discharged on 23 January 1980.

The applicant enlisted in the Rhode Island Army National Guard for one year on 4 June 1985.  A report of medical examination of that same date shows that the applicant was medically qualified for enlistment with a physical profile serial of    1 1 1 1 1 1.  In the report of medical history he furnished for the examination, the applicant did not list any medical or physical defects, ailments, or handicaps, and stated that he was in good health, of sound mind, and was not on any type of medication.  He was discharged from the ARNG on 3 June 1986 and transferred to the Army Reserve Control Group (Annual Training) at St. Louis.  He was discharged from the Army Reserve on 26 January 1990.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 5 of the regulation provided, at that time, for the administrative separation of individuals who had demonstrated during the first 180 days of training that they lacked the necessary motivation, discipline, ability or aptitude to become effective soldiers.  This program, known as the Trainee Discharge Program, mandated the award of an honorable discharge.

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.

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.  Service medical 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.  At the time of his separation the applicant stated that there had been no change in his physical condition since his last physical examination.  The applicant was separated from active duty for reasons other than physical disability.  

2.  The applicant's continued performance of 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.

3.  The Board notes that a report of medical examination shows that the applicant was physically fit for enlistment in the Rhode Island Army National Guard in 1985, and the applicant himself indicated that he had no medical ailments and that he was in good health.

4.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

6.  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.

7.  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___  ___kak___  ___clg__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999032059	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000426	
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.  189	108.00	
2.		
3.		
4.		
5.		
6.