MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   

	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. Loren G. Harrell		Director	
	M		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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 he be provided the opportunity to be reenlisted in the Army Reserve.

APPLICANT STATES:  In essence, that he was involved in a motor vehicle accident on 31 July 1989 during annual training at Fort Campbell, Kentucky, and that as a result of that accident he suffered lower back pain and discomfort which limited his ability to perform physical training and resulted in his early discharge.  In support of the application he submitted a booklet titled "Contents" which contains copies of numerous documents related to his military service and the basis for his separation.

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

He served on active duty in the Navy from 31 January 1956 to 24 November 1959 and in the Navy Reserve from 13 October 1979 to 31 October 1980.  He subsequently was enlisted in the Army Reserve on 22 November 1980.  During the period of time in question, he was serving as a reenlistment NCO in the grade of staff sergeant.

The applicant was injured in line of duty on 31 July 1989; however, a Report of Investigation - Line of Duty and Misconduct Status, DD Form 261, apparently was not prepared until more than 7 years later, on 28 May 1997.  That document shows that the applicant was injured in the line of duty on 31 July 1989 as the result of an automobile accident during annual training.  The document shows the medical diagnosis as "Muscle contusion"  (The American Medical Association Encyclopedia of Medicine defines a contusion as "damage to the skin and underlying tissues from a blunt injury such as a fall; the skin may be grazed and the tissues bruised.")

The applicant's NCO Evaluation Report (NCOER) for the period covering November 1989 through June 1990 shows that he passed the Army Physical Fitness Test (APFT) during March 1990; and that his rater at the time indicated that the applicant met the standards of physical fitness and military bearing.  At that time his height and weight were reflected as 72 inches/188 pounds.

The next NCOER in the available records, for the period covering November 
1991 through October 1992, shows that he passed the APFT during May
1992 and that his rater at the time indicated that the applicant met the standards of physical fitness and military bearing.  At that time his weight was reflected as 222 pounds.  His rater commented that he met the body fat standards but "needs to reduce overall body weight." 

A General Counseling Form shows that the applicant was counseled after failing the APFT on 7 March 1994; that he was required to score 60 points in each of the three tests, however, his scores were 36, 67, and 0; and that because of his failure, a Flag (suspension of favorable personnel actions) had been initiated.  He was counseled at that time that any future failure of the APFT would result in him being barred from reenlistment or processed for separation for unsatisfactory performance.

On 19 April 1994 his commander recommended that he be separated from the service because of being overweight; however, a Board of Officers Report, dated 4 October 1994, shows that the applicant at that time "was borderline, but in compliance with Army body fat standards" and, apparently, the recommendation was disapproved.

A Chronological Statement of Retirement Points, dated 20 January 1995, shows that the applicant had at that time 17 years of creditable service for eligibility for Reserve retirement pay at age 60.

The applicant's NCO Evaluation Report (NCOER) for the period covering October 1995 through September 1996 shows that he failed the APFT in August 1996; and that he was "currently flagged for not meeting APFT standards IAW Army Regulation 350-15."  

A 5 September 1996 document submitted by the applicant and signed by a civilian physician shows, in part, that the applicant "has significant arthritis of his lumbar spine which has basically eliminated his ability to run or walk for distances greater than two miles."

On 21 November 1996 he was honorably discharged by reason of his expiration of term of service.

On 8 June 1998 he submitted a claim to the VA for service connection for "residuals of my degenerative disc disease condition which was contracted while I was on active duty."  Additionally, he wrote that one leg was shorter than the other, that he suffered hip pain, and that he took numerous medications for these conditions.  Neither a VA Rating Decision nor other medical documents pertaining to those claims are in the available records.

Title 38, United States Code, section 3.303, provides that the term “service connection” connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.  Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.”
The National Defense Authorization Act for Fiscal Year 1995 (Public Law 
103-337) amended Title 10, United States Code, section 1331a(c) to allow Reserve Component soldiers who are involuntarily separated between 5 October 1994 and 30 September 1999 because of medical unfitness to elect transfer to the Retired Reserve for reduced Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service toward Reserve retirement.  The individual must also meet the requirement of having performed the last 6 years of qualifying service in the Reserve Components as outlined in Title 10, United States Code, section 1331(a) and the new subsection (f).

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.  The applicant suffered an injury in line of duty on 31 July 1989 which was diagnosed as a bruised muscle.  He then passed the APFT in 1990, presumably in 1991, in 1992, and presumably again in 1993.  On 7 March 1994, more than 4 1/2 years after the bruise, he failed the APFT.  Although information concerning his 1995 APFT is not in the available records, he again failed the APFT in 1996.

2.  There is no evidence of record nor has the applicant provided any documentation which would indicate a correlation between the muscle he bruised in 1989, his failure to subsequently pass the APFT in 1994 and 1996, and his arthritis condition which was diagnosed in 1996.  Further, his evaluations show that he continued to perform his duties.  Therefore, although not specifically requested by the applicant, there is no basis for referral for disability processing.

3.  As evidenced by the 5 September 1996 document signed by a civilian physician, the applicant suffered from arthritis (which the applicant later described in his VA claim as degenerative disc disease) at the time which "basically eliminated his ability to run or walk for distances greater than two miles."  Accordingly, the Flag, which prohibited the applicant from reenlisting approximately 2 months later, was properly imposed in accordance with regulation based on his failure to pass the APFT.  

4.  Apparently through administrative error, a timely line of duty determination was not made concerning the bruised muscle injury.  That error has been corrected by the Department and permits the applicant to receive compensation and treatment for residuals of that injury based on a determination of service connection by the VA, as well as any other injury or illness which is determined by that agency to be related to his military service.

5.  The applicant may be eligible for reduced Reserve retirement pay under the provisions of the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337) based on the impairment diagnosed in 1996.  However, absent a specific request by the applicant, the Board cannot address that issue at this time.

6.  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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-11976	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19961121	
DISCHARGE AUTHORITY	AR 635-200 	
DISCHARGE REASON	ETS	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.	108.04	
3.		
4.		
5.		
6.