MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:	

	BOARD DATE:            15 December 1999
	DOCKET NUMBER:	AR1999018296

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Mark D. Manning		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:  Reconsideration of her previous application to correct her records by granting her physical disability retirement.  Additionally, she requests that she be granted a monetary award for compensatory damages due to negligence and medical malpractice.

APPLICANT STATES:  In effect that she was injured in a rappelling accident that was not properly evaluated and treated at the time it occurred.  She further contends that she was not properly evaluated at the time of her out-processing physical examination and that the recommendation that a medical evaluation board (MEB) review her condition was disregarded.

NEW EVIDENCE OR INFORMATION:  The applicant’s case is reopened in accordance with the Army Board for Correction of Military Records Reconsideration Project (ABCMR-RP) criteria.  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of her case on 25 November 1992 (COPY ATTACHED).

The applicant submits an extensive presentation, which includes photocopies of her x-rays taken following her accident, and those preformed by the VA.  Additionally, she submits copies of MRIs taken between 1988 and 1996.  These records, which were not available to the Board previously, constitute new evidence that requires Board review. 

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, they must be unable to perform the duties of their office, grade, rank or rating.

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 evidence submitted by the applicant does document a deteriorating condition, which most likely had its onset as a result of her injury on active duty.

2.  It is regrettable that the applicant has suffered and continues to suffer from this condition, however, she has failed to submit any evidence that her condition warranted physical disability separation or retirement.

3.  On the issue of a monetary award for compensatory damages, the Board does not have the authority to grant such relief.

4.  Prior to reaching this determination the Board looked at the entire file.  It was only after all aspects of the case had been considered and it had been concluded that there was no basis to recommend a correction of her records that the Board considered the statute of limitations.  Had the Board determined that error or injustice existed it undoubtedly would have recommended relief in spite of her failure to submit the application within the 3 year time limit.  The Board has never denied an application simply because it was not submitted within the required time.

5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__tnk____  ___eb___  ___mdm_  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018296	
SUFFIX		
RECON		
DATE BOARDED	1991215	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES        1.	108.02	
2.		
3.		
4.		
5.		
6.