MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 January 1999   
	DOCKET NUMBER:   AC97-10385
				   AR1999017654

	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. Luther L. Santiful		Chairperson	
	Mr. Robert W. Garrett		Member	
	Mr. Curtis L. Greenway		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:  The applicant states that he served in the Army from July of 1956 until July 1958.  He was in the hospital before he went to Korea and hospitalized several times in Korea.  After his return from Korea, he was in a hospital in San Francisco.  After spending 16 months overseas, he was denied medical treatment, and for several years denied benefits.

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

The applicant's military records may have been lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from alternate sources.  The applicant’s medical records, however, appear to be complete.

The applicant entered the Army on 20 July 1956 and was released from active duty on 17 July 1958 with an honorable discharge in the rank of Private First Class.
 
A clinical record shows that the applicant was hospitalized for 9 days at Fort Jackson, South Carolina, for bronchopneumonia, and returned to duty on 
17 August 1956. 

The applicant was hospitalized at the 121st Evacuation Hospital in Korea for 
7 days for acute pharyngitis and returned to duty on 6 April 1957.

The applicant was treated for acute urethritis, due to gonococcus on 
4 September 1957 and returned to duty that same day.

A clinical record shows that the applicant was hospitalized in the 548th General Dispensary in Seoul, Korea for 2 days for influenza and returned to duty on 
27 September 1957.

A clinical record shows that the applicant was hospitalized in the 548th General Dispensary 2 days for acute pharyngitis, and returned to duty on 
6 November 1957.

A clinical record shows that the applicant spent one day in the 548th General Dispensary for acute tonsillitis, and returned to duty on 3 April 1958.

A clinical record shows that the applicant was hospitalized for 6 days for acute sinusitis at the 121st Evacuation Hospital in Korea and returned to duty on 
21 April 1958.    

The applicant was hospitalized at Letterman Army Hospital in San Francisco for 55 days for a chancroid and returned to duty on 8 July 1958. 

A 16 July 1958 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile code of 1 1 1 1 1 1.  In the report of medical history he furnished for the examination, he stated that he was in good health.  

On 17 May 1976 the VA denied the applicant’s claim for service connected disability for anxiety neurosis.

On 1 February 1985 the VA denied the applicant’s reopened claim for service connected disability for hiatal hernia, spinal meningitis, and residuals for bronchial pneumonia.  The VA also stated in its decision that service connection for chest pain, nervous condition and back pain were not placed in issue as those conditions had been previously considered, denied, and the denial upheld more than once. 

On 8 December 1993 the VA determine that the applicant had not submitted new and material evidence to reopen his claim for service connection for hiatal hernia, residuals of spinal meningitis and a nervous condition.

On 11 May 1995 the VA determined that the applicant ha not submitted new and material evidence to reopen his claim for service connection for residuals of bronchial pneumonia; and denied his claim for service connection for arthritis of his left shoulder and for sinusitis. 
  
In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the medical advisor to the Army Review Boards Agency.  He stated that the applicant was separated upon his ETS (separation date), that a separation physical examination found him qualified to be released from active duty, and that the applicant stated that he was in good health.  There was no medical reason to change his discharge.

On 14 August 1998 the applicant was furnished a copy of the aforementioned advisory opinion for possible rebuttal.  He failed to respond.

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 2-2b, as amended, 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.

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(s), it is concluded:

1.  Service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.  

2.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary.

3.  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.

4.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

5.  The VA has determined over the course of a number of years, that the applicant does not have any service connected disabilities and has denied his claims for such.

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

__lls___  ___rwg__  ___clg_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC9710385/AR1999017654	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990128	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.