MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            16 December 1998                  
	DOCKET NUMBER:   AC98-11366

	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.  The following members, a quorum, were present:

	Mr.	Ernest M. Willcher		Chairperson	
	Ms.	Lana E. McGlynn		Member	
	Mr.	Carol J. Suiter		Member	

	Also present, without vote, were:

	Mr.	Loren G. Harrell		Director	
	Mr.	Ed Clark		Analyst	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 from the Regular Army or the Army National Guard (ARNG). 

APPLICANT STATES:  In essence, that he believes that he contracted the human immunodeficiency virus (HIV) from a prostitute while he was serving on active duty in Germany or, alternately, while he was serving as a member of the ARNG; that he elected not to undergo a separation physical examination when he was separated from active duty in 1983 and that his HIV condition might have been detected at that time; and that when it was detected in 1987 he was serving with the ARNG.  He indicates further high risk behavior during that period of time.  Additionally, he states that he has a history of an anxiety disorder dating back to his active duty service which should be considered as evidence that he suffers from post traumatic stress disorder.

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

He entered active duty on 27 February 1980.  He served with armor units in Germany and Fort Sill, Oklahoma, and attained pay grade E-4. 

The available service medical records do not contain any entries concerning treatment for a mental disorder.

On 18 February 1983 he was separated from active duty by reason of his expiration of term of service.

On 23 February 1983 he was enlisted in the ARNG of Maryland and subsequently served with a unit in Baltimore in pay grade E-4.

On 28 January 1987 he was issued a physical profile for medical observation for a viral infection.  Assignment limitations prohibited his assignment outside of the United States.

A Walter Reed Army Medical Center (WRAMC) Inpatient Treatment Record Cover Sheet shows that the applicant was admitted to that facility as a direct admission on 20 January 1987; that he was diagnosed with an HIV infection causing lymphadenopathy; and that he was discharged to a duty status on 
23 January 1987.

On 21 February 1987 he underwent a periodic physical examination.  At that time he specifically denied that he had ever been a patient in a hospital; and denied that he had, or ever had, frequent trouble sleeping or nervous trouble of any sort.  He was found medically qualified for retention.

On 24 May 1988 he resigned from his civil service position as a personnel administration specialist with his ARNG unit in Baltimore.

Orders dated 26 May 1987 show that he was ordered to full time training duty for the period 26 to 29 May 1987 for the purpose of medical evaluation at WRAMC.

On 15 August 1988 he was honorably discharged from the ARNG.

Documents submitted by the applicant show that he underwent a psychiatric evaluation on 27 November 1993; and that he was diagnosed as being in a state of  major depression at that time.

On 10 September 1997 he was awarded a certificate by the Maryland Heath Care System for completing the Substance Abuse Program.  (The certificate was provided by the applicant).

A 24 June 1997 letter signed by a physician and addressed to the VA shows that the applicant was diagnosed as suffering from anxiety and insomnia after the applicant complained of symptoms which began “since his separation from the military.”  The physician wrote that the applicant “later came to my office for follow up visits pertaining to his HIV disease and depression. “  However, due to a fire that destroyed the applicant’s medical records, the physician stated that he could not provide any documentation to substantiate his diagnosis.

The Merck Manual, 16th Edition describes HIV as an infection caused by several related retroviruses that become incorporated into the host cell DNA and result in a wide range of clinical presentations varying from asymptomatic (no symptoms) carrier states to severely debilitating and fatal disorders.  Acquired Immunodeficiency Syndrome (AIDS) is a secondary immunodeficiency syndrome resulting from HIV infection and is characterized by opportunistic infections, malignancies, neurologic dysfunction, and a variety of other syndromes.

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 or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-2b(2), provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.

Army Regulation 635-40, Chapter 8, Reserve Components, provides that in order for soldiers of the Reserve Components (ARNG and USAR) to be compensated for a disability, the disability must be determined to have been the proximate result of performing military duty.  Proximate result establishes a causal relationship between the disability and the required military duty.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  There is no evidence of record nor has the applicant provided sufficient evidence which would indicate that he suffered from any illness or injury at the time of his separation from active duty that was of such severity that he was rendered unable to reasonably perform the duties of his office, grade, rank or rating.

2.  The applicant’s active military service was not interrupted by physical disability.

3.  The applicant’s continued performance of duty while serving on active 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.

4.  There is no evidence of record nor has the applicant provided sufficient evidence which would indicate that he contracted HIV as the proximate result of performing military duty.  Accordingly, there is no basis on which to grant his request for disability separation from the ARNG.

5.  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

EMW____  LEM____  CJS ____  DENY APPLICATION

						Loren G. Harrell
						Director