MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            5 May 1999
	DOCKET NUMBER:   AR1999020061

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. John Saputo		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:  That his honorable discharge be changed to a medical discharge.

APPLICANT STATES:  In effect, that his chain of command of his last unit failed to process/submit his recommendation from the medical review board in a timely manner to the In/Out Processing Station.  In support of his application he submits a copy of DA Form 3349 (Medical Condition-Physical Profile Record).

COUNSEL CONTENDS: The American Legion, as counsel for the applicant, supports his request and rest on the evidence of record.  Counsel requested that the Board’s final decision reflect sound equitable principles consistent in law, regulation, policy and discretion.

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

The applicant entered active duty on 19 February 1968 as a clerk typist and continued to serve until he was honorably discharged on 23 September 1970.

After a break in service, he reenlisted on 4 November 1970.

On 10 April 1974, the applicant sustained an injury to his left lower leg as a result of a gunshot wound.

On 24 April 1974, a Line of Duty (LOD) Investigation was conducted which determined that the applicant’s injury was ”not in line of duty–due to own misconduct”.  Upon review by the Division Commander, the LOD was changed to “in line of duty “per rule 1 DA Pamphlet 27-21 and was changed to show that his injury was not the result of misconduct.

The applicant’s DD Form 3349 (Medical Condition-Physical Profile Record), dated 20 September 1974, shows that he was issued a permanent physical profile of 113111.

The applicant underwent a separation medical examination on 14 November 1974 and was found qualified for separation.

The applicant was discharged on 29 November 1974 under the provisions of 
AR 635-200, chapter 2, section VI, based on completion of his required active service.  He had completed 6 years, 7 months, and 4 days of creditable service.

On 10 October 1978, the applicant filed a claim with the Department of Veterans Affairs (DVA) for a service-connected disability for a lower left leg condition.  He was denied compensation on 8 December 1978.

On 28 April 1986, he reapplied to the DVA for compensation of his injury to his left lower leg.  The applicant submitted new and material evidence; however, his claim remained denied.

The applicant submitted an appeal to the Board of Veterans Appeal (BVA) on 14 July 1987 for his injury and was denied once again on 22 May 1990.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically fit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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 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, it is concluded:

1.  The applicant did not have any medically unfitting disability, which required physical disability processing at the time of his separation.

2.  Notwithstanding the physical profile submitted by the applicant, he continued to perform duty despite an impairment which is presumptive evidence of physical fitness.

3.  The applicant was on active duty from 19 February 1968 to 23 September 1970 and from 4 November 1970 to 29 November 1974.  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.  

4.  The evidence of record clearly indicates that the applicant was properly determined to be qualified for separation.  Likewise, the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5.  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.

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

JMA____  JS______  RWA____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020061	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990505	
TYPE OF DISCHARGE	HON	
DATE OF DISCHARGE	19741129	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 110		
2.		
3.		
4.		
5.		
6.