MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  8 September 1999
	DOCKET NUMBER:   AR1999021181

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Karen L. Wolff		Member	
	Mr. Orville W. Troesch, Jr.		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, that a medical retention board determine his fitness for duty, his degree of disability and his eligibility for medical retirement benefits.

APPLICANT STATES:  In effect, that he separated from active duty under the special separation benefit program with a permanent (P-3) physical profile for left knee hypertension, knee pain, and constant back and neck pain due to a herniated disc diagnosed by the VA in May 1996 but undiagnosed at the time of his separation.  

In support of his request, the applicant submitted a number of documents also available in his records.

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

He had nearly 3 and ½ years of prior service.  He reenlisted in the Regular Army (RA) on 20 April 1984.

His DD form 3349, physical profile, dated 3 March 1995, indicated that his profile was permanent with a designation under P U L H E S of 1 1 3 1 1 1.  This profile allowed him to run and march at his own pace.

On 5 April 1995, he signed an enlistment contract for a 3-year service obligation in the active USAR at Fort Meade, Maryland with an effective date occurring on 26 April 1995, the day following his separation from active duty in the RA.

The reports of medical history and medical examination, normally completed prior to separation, were not available in his records.

His DD Form 214, separation document, shows that he was separated from the RA in the rank of sergeant on 25 April 1995 under the provisions of Army Regulation (AR) 635-200, Chapter 16, Army release program, separation benefit.  He had completed 
14 years, 5 months and 23 days of creditable service characterized as honorable.  Additionally, he received $38,413.44 in special separation pay.

A report of medical treatment indicated that on 30 October 1995, he was treated for recurrent pain in his left knee made worse from his participation in physical fitness training the preceding day.  The attending doctor prescribed rest, ice, knee elevation, and Tylenol.  The report also noted his permanent profile.

His report of medical examination, dated 18 October 1997, indicted that he was not qualified for retention in the USAR.  The report noted that his neck and shoulder area was tender and in some pain; that he had severe knee and back pain which required constant medication; and that his condition sometimes limited his duties.

His report of medical history, dated 18 October 1997, completed and signed by 
him, indicated chronic left knee pain since 1989 and constant upper neck pain since 1995 and back pain from a herniated disc at the C6-C7 level since January 1988.

On 6 December 1997, he was transferred from his USAR unit at Fort Meade to the Retired Reserve.

AR 40-501 pertains to standards of medical fitness.  Generally, standards of medical fitness are the same for Active Army Component and Reserve Component personnel.  Each member is responsible for achieving the appropriate standards of medical fitness for initial entry or retention in military service.

Chapter 9 of this regulation pertains to the disposition of medically unfit RC members and states, in effect and in pertinent part, that normally, RC members will be discharged from the USAR or transferred to the Retired Reserve, if eligible, when found medically unfit.  This chapter also states that RC members may apply to the Commanding General, Army Reserve Personnel Command (ARPERSCOM) for continuation in the USAR.  Such requests will include a report of medical examination, a summary of experience and qualifications, and a commander’s evaluation and determination of value to the service.  These requests will also be processed through the surgeon general who will determine if the disability would adversely affect duty performance or if active service would aggravate the condition to cause further hospitalization, time lost from duty, or a claim against the government.

AR 635-40 pertains to physical evaluation for retention, retirement or separation and applies to Active Army Component and Reserve Component (RC) personnel.  Chapter 8 pertains to medical processing of RC members and states, in effect and in pertinent part, that when a commander or other proper authority believes that a soldier, not on extended active duty, is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability, the commander will refer the soldier for medical evaluation in accordance with AR 40-501.  

This chapter also states that in order for a member of the RC to be compensated for disabilities while performing duty for 30 days or less including initial duty training, there must be a determination by a physical evaluation board that the unfitting condition was the proximate result of performing duty.

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’s request lacks merit considering the evidence of record.

2.  The Board finds that the evidence of record clearly establishes that his medical 
condition relating to his knee and back pain existed prior to his entry in the USAR.  In 
the absence of the reports of medical history and medical examination, the Board presumes he was medically qualified for separation from the RA and entry into the USAR.  There was nothing in the evidence of record or evidence submitted by him to substantiate a diagnosis of a herniated disc as the cause of his neck pain as he alleged.

3.  The Board also concludes that his lengthy medical history of knee and back pain, likely aggravated during USAR participation, may have contributed to his unfitness for retention in the USAR.  However, his unfitting condition was not considered the proximate result of performing duty.  Therefore, no basis existed to refer him for physical disability processing, an option only available to his chain of command.

4.  Considering his desire to continue serving in the USAR, he should apply for continuance in active USAR status as outlined in AR 40-501.

5.  His administrative separation and transfer to the Retired Reserve was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights. 

6.  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.

7.  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

__FM___  ___KW__  __OT____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021181	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990908	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19950425	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	SPECIAL SEPARATION BENEFIT	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	145	
2.		
3.		
4.		
5.		
6.