MEMORANDUM OF CONSIDERATION   

	IN THE CASE OF:      

	BOARD DATE:           29 OCTOBER 2002                   
	DOCKET NUMBER:   AR2002077501

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Ms. Barbara J. Lutz		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 retirement or separation.  

APPLICANT STATES:  That he should have received a medical discharge.  The lost time that he had was not his doing, but because of his medical condition.  He had some seizures and brain damage, which happened after basic training.  They started at Fort Knox, Kentucky.  He has no memory of things that happened.

COUNSEL CONTENDS:  Counsel supports the applicant’s request.

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

Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's consideration of his 1997 request to upgrade his undesirable discharge (AR1999018863).  

That memorandum shows that the applicant was discharged on 18 August 1969 with an undesirable discharge.  He had 619 days of lost time because of AWOL and military confinement.  Prior to his discharge he had a complete medical examination.  The psychiatric portion of that examination showed that the applicant suffered from a severe passive aggressive personality disorder; however, he was medically qualified for separation.  

The applicant submits with his application recent medical documents dated in 2001.  Documents show that the applicant had a 1 centimeter basilar tip aneurysm in a portion of his head, that he was treated for a cough, pain to his knee, and hematuria (blood in the urine).  One clinical record indicates that he was referred for brain surgery; however, there is no indication that such surgery was performed.  Another record shows that he had bronchitis and that his insurance would not pay for it [medicine] anymore.  Records also indicate that he was paranoid, hallucinogenic, that he had pain in his flank, and that he had acute sinusitis.  A 12 March 2001 medical report shows that he was seen for left flank pain and hematuria.  That report showed that he had a past history which was significant for seizures and aneurysms in his brain.  A 14 March 2001 report shows a diagnosis of paranoid schizophrenia.     

On 29 July 2002 this agency requested from the applicant a copy of his VA medical records in order to make a determination on his application.  In his undated reply, he stated that he had no such records, because he was not eligible for treatment by the VA. 

Army Regulation 40-501 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, then in effect, 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.

That regulation also states that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for, or continue, disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial
to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing. 

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 applicant’s records indicate that he was medically qualified for separation from the Army in 1969.  The recent medical documents that he submits with his application does not refute this determination.  He did not have any medically unfitting disability at the time of his separation.  Furthermore, because of the nature of the applicant’s offense, he could not be referred for disability processing notwithstanding a medical condition that he might have had in 1969.  

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

3.  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 that requirement.

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

__KAK__  __TAP  __  __BJL___  DENY APPLICATION

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

INDEX

CASE ID	AR2002077501	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021029	
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.	108.00	
2.		
3.		
4.		
5.		
6.