MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:

	BOARD DATE:            19 May 1999       
	DOCKET NUMBER:   AR1999021182

	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, physical disability retirement or discharge.

APPLICANT STATES:  He states that an officer provided erroneous information that resulted in his being denied disability.  In a 21 March 1997 letter to the commander of the Army Reserve Personnel Center at St. Louis, the applicant stated that he was wrongly denied disability at Fort Jackson, South Carolina in August 1994 when he developed medical problems related to injuries that he received while serving in Korea in 1969, and which he reinjured in 1981.  He states that his medical records were reviewed, and it was determined that he was no longer fit to serve in the Army Reserves.  He also had two line of duty determinations (DA Forms 2173) that showed he developed problems while in the Army.  After finishing summer camp he was referred to the Army hospital at Fort Jackson and was told that he was eligible for disability; however, he was coerced into signing a discharge request.

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

The applicant was inducted into the Army on 11 February 1969, was trained as a radio mechanic, and was assigned to an infantry battalion in Korea.  His medical records while on active duty show that he was treated for soreness in his back in July and in August 1970.  The records indicate that he incurred pain in the lumbar region while unloading wire from a truck.  In a 6 August 1970 report of medical examination, the applicant was physically qualified for separation.  He stated that he was in good health.  His physical profile serial was 1 1 1 1 1 1.  He returned to the United States and was released from active duty on                    18 September 1970 and transferred to the Army Reserve Control Group             at St. Louis.  

A 6 November 1970 VA medical examination reveals that a radiographic report of the applicant’s lumbosacral spine indicated that there was no evidence of old or recent fracture or dislocation.  Curvature and alignment were normal.  The intervertebral spaces were of normal height and all articular surfaces were smooth.  No destructive lesion was visualized and the spine appeared normal.     

The applicant was discharged from the Army Reserve in February 1975.

The applicant reenlisted in the Army Reserve for six years on 27 October 1979, and from that time until his discharge in 1996 he remained a member of the Reserve, a good portion of that time being assigned to a unit of the 108th Training Group in Charlotte, North Carolina.

A 23 September 1981 medical record completed at Fort Benning, Georgia indicates that the applicant was seen because of pain in his back and his hips, and that he stated that he had back pain for 11 years.

A 21 August 1990 medical record completed at Fort Benning, Georgia, indicates that the applicant was treated for dizziness. 

NCO evaluation reports ending in October 1990, 1991, 1992, 1993, and October 1994 show that the applicant passed the Army physical training test during each of those years.

A 17 August 1994 medical record indicates that the applicant was treated for chronic disabling headaches –migraine variants, asthma likely due to past use of Inderal LA to prophylax migraines, but no true night sweats.

In a 2 October 1994 memorandum to the Fort Jackson hospital medical board, the applicant’s commanding officer stated that the applicant complained of headaches while at annual training at Fort Jackson from 8-21 August 1994 and was diagnosed as having a chronic disabling migraine. 

A 14 October 1994 informal line of duty investigation (Statement of Medical Examination and Duty Status, DA Form 2173) indicates that the applicant had stated that he injured his right hip and right leg by falling in a bath tub at Fort Jackson on or about 17 October 1989 while in an active duty for training status.  He was seen at the health clinic.  The applicant’s unit administrator determined that his injury was considered to have been incurred in line of duty.  A medical report completed at Fort Jackson does indicate he was treated for hip and knee pain as a result of slipping in a shower. 

Another 14 October 1994 informal line of duty investigation shows that the applicant was treated at the health clinic and the hospital at Fort Jackson on     17 August 1994 for migraine headaches, asthma, arthritis, high blood pressure, and dizziness, while on active duty for training.  He was referred to a medical board.  The unit administrator determined that his injury was considered not to have been incurred in line of duty. 

An 18 October 1994 informal line of duty investigation shows that the applicant was treated at the medical clinic at Fort Benning on 23 September 1981 with complaints of back and hip pain, revealing to the physician that symptoms had been occurring for the past 11 years.  The unit administrator determined that his injury was considered to have been incurred in line of duty. 

In a 12 November 1994 letter a doctor stated that he had been seeing the applicant since October 1990, and that he had been treated for migraine headaches and arthritis.  The applicant stated that his initial symptoms began shortly after serving in the Korean war where he was required to sleep in subfreezing temperature for extended periods of time.  He stated that he had been bothered by pain, inflammation and stiffness since 1969 and felt that that activity initiated his problems with joint pains and stiffness.
In a 14 January 1995 statement the applicant said that while on duty in Korea in 1969 he fell down a hill with a foot locker full of communication equipment, fell into a concrete culvert, injuring his right leg, right hip, and lower back.  He was treated and placed on bed rest for one week, and then returned to duty as a scout on patrol for 12 hour tours, sleeping on the ground in the snow and ice for over a year.  Those events caused his present problems with his legs and hips. 

A 15 January 1995 report of investigation indicates that in August 1994 at the Army Health Clinic at Fort Jackson, the applicant was diagnosed as having migraine headaches, dizziness, and night sweats, and that those conditions were pre-existing.  The investigating officer found that the conditions were not in line of duty – not due to his own misconduct.  There is no information as to whether or not this finding was approved.

Medical records show that the applicant has been treated for various ailments over the years, to include hypertension, musculoskeletal spasm, reflux, dizziness, slight pain in legs, asthma (exercise induced – smoked for 30 years), depression, memory loss, alcoholism, chest pain, dyspnea, among other medical ailments. 

On 21 June 1995 the applicant was transferred to the Army Reserve Control Group (Reinforcement) at St. Louis.  The order effecting the transfer indicates that it was a voluntary reassignment.

On 25 October 1995 the Physical Evaluation Board Liaison Officer (PEBLO) at the Fort Jackson medical activity forwarded to the commander of the Army Reserve Personnel Center the medical evaluation board and health record in accordance with the provisions of Army Regulation 635-40, paragraph               8-6b, concerning the applicant, for appropriate administrative disposition; and informed that commander that the applicant was ineligible for referral in the Army’s physical disability system as evidenced by the results of his formal line of duty investigations. 

On 14 November 1995 the applicant was notified by the Army Reserve Personnel Center that a review of his medical records revealed that he did not meet the standards for retention in the Army Reserve because of multiple medical conditions, and that he either had to elect discharge, transfer to the Retired Reserve, or request a waiver for retention.  The applicant elected to be discharged.  He was discharged from the Army Reserve on 21 February 1996.

In a 9 October 1996 letter from a medical doctor to the applicant, that person provided the applicant the results of x-ray and laboratory tests.  He stated that in his judgment there was some abnormality of the sacro-iliac joints, suggesting that the applicant had some inflammation of those joints for a long time, which suggested the possibility of a condition known as ankylosing spondylitis.
A 9 March 1998 medical report indicates no abnormality of the thoracic spine and no abnormality of the lumbar spine.  There was no spondylolysis or spondylolisthesis.  The vertebral body heights and disc spaces were maintained and there was normal alignment.  Visualized aspects of the sacrum and sacro-iliac joints were normal. 

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.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

Army Regulation 600-8-1, Part Five, sets forth policies and procedures for investigating the circumstances of the disease, injury, or death of a service member and provides standards and considerations used in determining LOD status.

Paragraph 41-8 of that regulation, in pertinent part, states that the term “EPTS” added to a medical diagnosis shows that there is substantial evidence that the disease or injury, or underlying condition, existed before military service or it happened between periods of active service.  The doctor, during examination and treatment of the member, usually determines an EPTS condition.  He annotates the medical records as to whether the condition existed prior to service.  If a line of duty finding is required, information from the medical records will be used to support a finding that an EPTS condition was or was not aggravated by military service.  If an EPTS condition was aggravated by military service, the finding will be “in line of duty”.

If an EPTS condition is not aggravated by military service, the finding will be “not in line of duty-not due to own misconduct”.  Specific findings of natural progress of the pre-existing injury or disease based upon well established medical principles alone, are enough to overcome the presumption of service aggravation.
Army Regulation 635-40, chapter 8, outlines the rules for processing through the disability system soldiers of the Reserve components who are on active duty for a period of less than 30 days or on inactive duty for training.  Paragraph 8-2 states that soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, etc.

Paragraph 8-6 states that when a commander believes that a solider not on extended active duty is unable to perform his duties because of physical disability, the commander will refer the soldier for medical evaluation.  Paragraph 8-6b states in effect, that the medical treatment facility will forward the medical evaluation board to the soldier’s unit commander for disposition under applicable regulations. 

Paragraph 8-9 states in pertinent part that a soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc. 

The ARPERCEN Surgeon has previously advised the Board that he routinely reviews the medical records of Reserve personnel to determine if they have any medical condition which would be further aggravated by the rigors of military service, and uses that premise as one basis to determine fitness for retention.   

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.  He was on active duty from 11 February 1969 to 18 September 1970.  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.  The applicant’s medical records do indicate that he was treated for back pain while on active duty; however, 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.  In November 1970, shortly after his release from active duty, the VA, in effect, determined that that his spine appeared normal.  

2.  The formal line of duty investigations referred to by the PEBLO at the Fort Jackson medical activity in his correspondence to the commander of the Army Reserve Personnel Center, are unavailable.  In the absence of evidence to the contrary, it is presumed that the applicant was ineligible for referral in the Army’s physical disability system, as stated in that correspondence, because his medical conditions were not as a result of injuries or disease incurred while on active duty, active duty for training, annual training, or inactive duty training.

3.  In the absence of medical evidence to the contrary, it is presumed that the decision by the Army Reserve Personnel Center that the applicant was not fit for retention in the Army Reserve is correct.  He was discharged in accordance with his wishes.  There is no evidence to indicate he was coerced into signing a request for discharge.

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

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

___jns__  __rgh___  __rwa___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021182	
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.