PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  27 May 1999                          
	DOCKET NUMBER:  

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Ms. Rosa M. Chandler.		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that her general discharge (GD) under the provisions of chapter 13, Army Regulations 635-200 be changed to a medical discharge.

3.  The applicant states, in effect, that the Department of Veterans Affairs (DVA) has awarded her a 50% service connected disability for her hip, back, knees and major depression.  She stated that she also paid into the Montgomery GI Bill (GI Bill) until May 1994.

4.  The applicant’s military records show that she left high school in the tenth grade after three of her brothers were burned to death in a fire.  She received her General Educational Development Diploma about a month after leaving high school.  On 
1 October 1993, she enlisted in the Regular Army for 4 years and Military Occupational Specialty (MOS) 92A (Automated Logistical Specialist).  

5.  On 22 November 1993, the applicant was granted a waiver for the final Army Physical Fitness Test (APFT) (two mile run).  She had a physical profile which precluded her from being tested in the event.  She had already demonstrated the ability to achieve minimum standards in the event.  She completed basic training at Fort Jackson, South Carolina  in December 1993, and was reassigned to Fort Lee, Virginia for advanced individual training. 

6.  In February 1994, during her fifth week of training, the applicant was recycled to another class after she failed the AdaSage Examination (twice).  During her counseling session, she stated that she wanted to stay in the military but she was having "family related distractions that affected her concentration during training."

7.  On 16 February 1994, the applicant received a mental status evaluation by professionally trained personnel.  The diagnosis stated that she suffered from an adjustment disorder with mixed emotional features.  The evaluation determined that continued military service would make life difficult for the applicant considering her family and personal problems.  She was found to be mentally responsible and able to distinguish right from wrong and to adhere to the right, and she had the mental capacity to understand and participate in board proceedings.  She was cleared for administrative action deemed appropriate by the command.

8.  On or about 1 March 1994, the applicant contacted her command, while crying and being very emotional.  She stated that she was under a tremendous amount of stress due to domestic and personal problems.  She stated that her husband was an illegal alien from Nigeria, he had lost his job, and he did not have a social security number, card, or driver's license.  He was at home taking care of their five children, her 62 year old mother and five additional children that her sister had left in his care, and that they were all depending on her income for support.  The applicant's chain of command assisted her by calling the Nigerian Embassy and scheduling an appointment for her husband to resolve his problem.  Later the same month she informed her chain of command that her family was in the process of being evicted from their apartment.  On 14 March 1994, She wrote a check at the Post Exchange without sufficient funds.  On 15 March 1994, she was counseled for a verbal altercation with another service member.  On 29 March 1994, she was counseled for disruptive behavior (crying in the classroom about her personal problems). 

9.  Evidence of record indicates various members of the applicant's chain of command continuously tried to assist her.  They made recommendations to her and they scheduled appointments for her to see the chaplain, social services, Community Mental Health (CMH) services, Family Advocacy, Legal Assistance and Army Emergency Relief. 

10.  On 23 March 1994, the applicant received a second mental status evaluation that stated that she suffered from an adjustment disorder and family problems.  She met retention standards and she had no psychological disease or defect.  The examining official further stated that it was unlikely that she could be rehabilitated into a satisfactory service member and cleared her for administrative separation.

11.  On 5 April 1994, the applicant underwent a third mental status evaluation.  The applicant stated that she was still preoccupied with personal problems that interfered with her ability to soldier.  She also stated that she was having problems sleeping.  Her husband still had not gone to the Nigerian Embassy in regards to obtaining citizenship.  Her sister and her mother had taken her five children to Alabama.  Her husband was contemplating suicide, and the past weekend she had drank alcohol heavily and considered going absent without leave (AWOL).  The diagnosis was "life circumstance problem and immature and self-defeating traits."  She met retention standards prescribed in chapter 3, Army Regulation 40-591, and she had no psychiatric disease or defect, which warranted disposition through medical channels.  The recommendation was that she be expeditiously discharged, since her coping mechanisms were deteriorating to more destructive and imprudent means.  

12.  On 13 April 1994, the commander notified the applicant that she was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He stated that he was recommending that she receive an honorable discharge.  She was advised of her rights.

13.  On 13 April 1994, the applicant acknowledged notification of the commander’s intent to separate her.  She consulted with legal counsel concerning the basis for the contemplated separation action and the rights available to her.  She was not entitled to have her case considered by a board of officers.  She authenticated a statement that indicated she understood the ramifications of receiving a GD. She also requested in a statement submitted in her own behalf that she be awarded an honorable discharge.  

14.  On 28 April 1994, the appropriate authority approved the separation recommendation and directed the issuance of a GD, under honorable conditions.
15.  On 4 May 1994, the applicant was discharged under the provisions of AR 635-200, chapter 13, for unsatisfactory performance with a GD.  She had completed 7 months and 4 days of creditable active service.

16.  In connection with his application, the Medical Advisor to this Board, opined (COPY ATTACHED), in essence, that the applicant's medical conditions and complaints were treated appropriately.  There is no evidence that any treating physician requested a Medical Evaluation Board (MEB).  Psychiatric evaluations, dated 16 February 1994, and 5 April 1994, indicates the applicant was diagnosed to have "Adjustment Disorder with Mixed Emotional Features." and "Life Circumstance Problems."  These conditions are not cause for referral to a MEB under the provisions of chapter 3, Army Regulation 
40-501.  Further, a physical examination dated 13 April 1994, found her to be qualified for separation.

17.  The above advisory opinion was referred to the applicant for comment or rebuttal, but she failed to respond.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  Either an honorable or a GD may be approved, based on the soldier's overall record of service.

19.  The GI Bill, as outlined in Title 10, United States Code, chapter 30, section 1411b, provides for soldiers who entered the service after 30 June 1985, to contribute $1,200 during their first 12 months of service.  The service member is entitled to up to $300.00 per month educational benefits for 36 months, after completion of the service obligation. The program is administered by the DVA.  However, to receive benefits, the service member must have served the majority of their enlistment obligation and by law, the initial $1.200 or any portion thereof is not refundable. 

CONCLUSIONS:

1.  The applicant's administrative separation on 4 May 1994 was accomplished in accordance with regulations then in effect. 

2.  Evidence of record shows that the applicant enlisted in the Army and brought with her a number of unresolved personal problems that escalated as time passed.  Her commander realized this and after all avenues had been explored he recommended that she be separated with an honorable discharge.

3.  The applicant had no nonjudicial punishments or indisciplines.  Due to the nature of her circumstance and her overall service record, the Board concludes that a fully honorable discharge is warranted.  However, there is no basis to change her reason for discharge.

4.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, the individual must be unable to perform the duties of her office, grade, rank or rating.  The applicant did not have a medically unfitting disability that required physical disability processing. 

5.  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.

6.  Since the applicant's medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

7.  Entitlement to the GI Bill has no bearing on the discharge.  Further, the DVA is charged with the operation of such a program.  The applicant should continue to work with the DVA concerning this matter.

8.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all Department of the Army records related to this case be corrected:

	a.  by showing that the general discharge of the individual concerned on 4 May 1994, is void and without force or effect; and 

	b.  by showing that she was honorably discharged on 4 May 1994, in accordance with chapter 13, Army Regulation 635-200.

2.  That so much of the application as in excess of the foregoing is denied.

BOARD VOTE:  

________  _______  _________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999023526	
SUFFIX		
RECON		
DATE BOARDED	19990527	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19940504	
DISCHARGE AUTHORITY	AR 635-200, Chapter 13	
DISCHARGE REASON	PERFORMANCE AND CONDUCT	
BOARD DECISION	(PARTIAL GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	Change GD to a medical discharge.  VA has granted 50% service connected disability for hip, back and knees.  Paid into montgomery GI Bill.	
2.		
3.		
4.		
5.		
6.