MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             19 May 1999    
	DOCKET NUMBER:     AR1999016262

	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. Kenneth Aucock		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, a medical evaluation board (MEB) followed by physical disability processing.  

APPLICANT STATES:  The applicant submits 13 attachments (Tabs A through N) with his request, which he has summarized.  Of note is a medical record consultation sheet, dated 16 September 1996 at Tab B, in which his condition was provisionally diagnosed as severe bullous.  At Tab C is a computer generated patient appointment printout from Walter Reed Army Medical Center (WRAMC), and hand written on that paper is a 13 November 1996 date with a doctor, which the applicant states was his appointment date for a MEB with him.

At Tab D is a 30 September 1996 memorandum from the Physical Evaluation Board Liaison Officer (PEBLO) at WRAMC requesting that the applicant be retained beyond his retirement date for a 13 November 1996 MEB.  The reviewing authority, the Deputy Commander for Clinical Services, recommended disapproval on that same date. 

At Tab G is an 8 October 1996 letter from the applicant to the PEBLO at WRAMC in which he expressed his disappointment at not being able to obtain a MEB, and in which he provided a brief chronology of the events just prior to, and immediately after, his retirement.  

He provides, at Tab H, a copy of a 9 October 1996 letter to a member of congress, in which he requests assistance from that official in obtaining a MEB.  At Tabs I, J, and K are copies of letters to the commander of WRAMC, a member of congress, and to the DOD Inspector General, in which the applicant protests the treatment he has received, reiterating his medical condition and circumstances prior to his retirement, and again requesting a MEB.

At Tab N is a 26 November 1997 memorandum from a doctor to a PEBLO describing the applicant’s medical condition.

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

In 1973 the applicant applied for an appointment as a Reserve commissioned officer in the Judge Advocate General Corps, with concurrent active duty.  On    14 June the Chief of the Evaluation and Inquires Branch in the office of The Surgeon General stated, in a memorandum to The Judge Advocate General,  that the applicant was medically disqualified for an appointment in the Reserve because of shortening of his left leg with noticeable limp and limitation of flexion of left hip to 45 degrees.  He went on to say that prior to any consideration for a waiver, an orthopedic consultation would be required.  On 15 August 1973 that same official stated that the applicant was medically disqualified for an appointment in the USAR and a waiver was not recommended.  The JAG waived the disqualifying factor.  The applicant was appointed a first lieutenant in the USAR in October 1974.  He was promoted to Major and appointed in the Regular Army in April of 1982.  On 1 November 1988 he was promoted to Lieutenant Colonel.

The applicant has served in various locations, to include Fort Gordon, Georgia, Fort McClellan, Alabama, Fort Benning, Georgia, Taiwan, West Point, Fort Benjamin Harrison, Indiana, Fort Hamilton, New York, and Fort Lewis, Washington.  He has successfully completed the Judge Advocate Graduate Course, and both the resident and nonresident Command and General Staff College.  He has received five awards of the Meritorious Service Medal, and has been awarded the Army Commendation Medal, among his other awards.  

The notation that the applicant had a physical profile appeared first in an evaluation report ending in April 1984, with the remark that his profile did not affect his ability to perform his assigned duties.  His report ending in April 1985 included the remark that he had underwent a hip replacement but was totally fit to perform legal duties anywhere.  The reports since then, and until his retirement, state in effect, that his profile did not affect his duty performance.  
 
On 12 August 1996 the applicant requested that he be released from active duty and placed on the retired list on 1 October 1996.  He was released from active duty on 30 September 1996 and placed on the retired list the next day.  He had   21 years, 11 months, and 22 days of service.

In similar cases the Board has been advised that the decision to retain an officer beyond his separation date (retirement, discharge, etc.) to undergo MEB proceedings rests with the office of The Surgeon General.
 
Army Regulation 40-501, paragraph 3-3b(1), as amended, 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, paragraph 3-1, states in pertinent part, that after a soldier has been enlisted, inducted, and appointed or commissioned, the soldier will not be declared physically unfit for military service because of disabilities known to exist at time of the soldier’s acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the soldier’s performance of effective military service.

Army Regulation 635-40, paragraph 3-2b, states 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.  

It 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.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Army Regulation 600-8-24, in effect at that time, prescribes policies and procedures governing transfer and discharge of Army officer personnel.  Chapter 6 of that regulation pertains to nondisability retirement.  Paragraph 6-6 states that a medical examination prior to retirement is required. The required medical examination will be scheduled not earlier than 4 months prior to the retirement date or the beginning of the officer's transition leave date. The officer's immediate commander will ensure the medical examination is processed according              to AR 40-501.

Paragraph 6-7  pertains to hospitalization/Physical Evaluation Board in connection with retirement, and states:

     a.  An officer who requests (or is scheduled for) retirement and has a medical 
problem (or becomes hospitalized) will be evaluated by the commander (or  
designated  representative) of the MTF to determine if referral to a PEB is 
necessary. When the officer is referred to the PEB, the MTF will promptly notify 
CDR, PERSCOM (TAPC-PDT-RR), or HQDA (DAPE-GO for general officers).  The Physical Evaluation Board Liaison Officer (PEBLO) must provide the officer's 
medical condition and scheduled date of the PEB.
 
     b.  An officer found fit for duty by a PEB will retire on the first day of the month 
following the month the officer is found fit.
 
     c.  When a PEB is not necessary but additional medical care is, a 
nondisability retirement will be processed.  Medical treatment will continue up to and after (if necessary) the approved retirement date.  The retirement date will not be changed because of medical treatment.

 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 satisfactorily served in the Army for over 20 years with a physical disability, which did not affect his duty performance, as attested by his evaluation reports.  He requested and was granted nondisability retirement for length of service.  

2.  The applicant's continued performance of 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, and in the absence of medical evidence to the contrary, it is presumed that the applicant was physically qualified for separation; notwithstanding the recommendation by a PEBLO that he be retained beyond his retirement date.  The Board notes that competent medical authority disapproved that recommendation, and determined that the applicant should not be retained beyond his retirement date for a MEB.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment that he received. 

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

4  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.

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

__jns____  ___rgh__  __rwa___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999016262	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990519	
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.