MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   AC98-05993
				   AR1999023360

	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	
	Mr. David H. Keller 		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Robert G. Hinkle		Member	
	Mr. Roger W. Able		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 in January 1965 she broke her right leg and left foot by jumping from the 2nd level WAC Detachment barracks to meet her husband.  That she had no intention of hurting herself, she just wanted to say good-bye to her husband because she was on orders to California.  In support of her request, she encloses a VA letter denying her claim for service connection because the disabilities were shown to be the result of willful misconduct.

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

She enlisted on 27 August 1964 and, after training, was assigned to Fort Benjamin Harrison, Indiana.  In January 1967 she was reassigned to Alaska.

A 24 January 1965 commander’s statement of duty status indicated that about 0245 hours the applicant allegedly jumped from the second floor barracks, fracturing her leg and two vertebrae.  That she had not applied for a pass and was trying to sneak out of the locked building in order to meet her husband who was on post.  That she attempted to climb down the outside of the barracks from the second floor and fell to the asphalt below.

A 19 February 1965 Report of Investigation, Line of Duty Status, indicated that the applicant intentionally broke Enlisted Women Student verbal instructions by leaving the WAC enlisted quarters.  Since she could not exit through the locked front door, she jumped from the second floor balcony.  The applicant’s husband did not witness the incident.  She was found “Not in Line of Duty – Due to Own Misconduct.”

A narrative summary of clinical record shows that she was hospitalized at Ireland Army Hospital, Fort Knox, Kentucky, from 24 January to 11 June 1965.  Upon discharge from the hospital the patient was bearing full weight on her legs and her gait was normal.

A 12 July 1968 report of medical examination, conducted for the purpose of release from active duty, indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1.  In the report of medical history the applicant furnished for the examination, she stated her health was “good.”

The applicant was honorably discharged on 14 September 1968 at Fort Wainwright, Alaska, on normal expiration of term of service.  She had 4 years and 18 days of creditable service.

An administrative decision by the VA, dated 1 August 1986, based on a claim for compensation filed by the applicant for injuries she sustained to both legs in January 1965, held that her injuries were not in line of duty and were the result of her own willful misconduct.

On 2 July 1996, in response to the applicant’s claim for service connected disability for hysterectomy, psychiatric condition, hypertension, an eye condition, dental condition, and a reopened claim for residuals of a fall (to include broken legs/foot and back injury), the VA rating decision denied all of her claims as non-service connected.

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 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

Paragraph 3-2b(1) of the regulation provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

Paragraph 3-2b(2) further 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.

Title 38, United States Code, sections 310 and 331, permits the VA to provide treatment and to award compensation for disabilities which were incurred in or aggravated by active military service.

In the processing of this case, an advisory opinion (COPY ATTACHED) was obtained from the staff medical advisor.  The Board was advised that a review of all available medical records shows that the fractures and sprain were well healed and that the applicant was returned to full duty.  She was found fit on her separation physical and there was no medical reason to change her discharge status.

On 9 December 1998 the applicant was given the opportunity to rebut the foregoing advisory opinion.  She failed to respond within the established 30-day time limit afforded her by this agency.

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

1.  The applicant’s leg and foot injuries incurred while on active duty was found to be not in the line of duty, due to her own misconduct.  Notwithstanding those injuries, she was provided a complete separation physical examination on 12 July 1968 and was found to be medically qualified for separation.

2.  The applicant’s military service was not interrupted by physical disability.  Notwithstanding the presence, or possible presence, of various medical conditions, there is no evidence of record, nor has the applicant provided sufficient evidence, which would indicate that she suffered from any medical condition of such severity that she was rendered unable to reasonably perform the duties of her office, rank, grade or rating.

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 the aforementioned 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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-05993/AR1999023360	
SUFFIX		
RECON		
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	145.00	
2.	110.00	
3.	142.00	
4.		
5.		
6.