MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

BOARD DATE:           3 May 2000                  
DOCKET NUMBER:   AR1999021558

	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.
				
	Ms. P. A. Castle		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Ernest W. Lutz, 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, reconsideration of his previous appeal to correct his military records by showing he was separated for physical disability on 16 January 1989.

APPLICANT STATES:  He took a physical in 1998 as part of an application for entrance in the Army Guard Reserve (AGR).  He was found medically disqualified and contends that the Board should use this information to correct his records.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case on 
19 February 1997 (COPY ATTACHED).

In the applicant’s submissions are new evidence and argument that requires Board consideration. 

The applicant submits a 6 July 1998 disqualification notification from the MEPS record of physical examination and the results of all the tests. He was found “medically disqualified for entry in the Armed Forces” due to angina, kidney stones, back pain, hypertension and hearing loss.  In addition, he enclosed a copy of military orders that recalled him to active duty for 9 months after his discharge date.

Army Regulation 635-40, paragraph 3-2b(1), provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury. Rather, physical disability separation or retirement is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

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 law and regulations cited in the Board’s prior consideration of the applicant’s case make it clear that to be separated for physical disability a soldier must be physically unable to perform duty and that the presence of a medical condition that was acquired or aggravated while entitled to basic pay does not necessarily require an medical evaluation board or qualify an individual for physical disability. 
2.  Not only is there no evidence to show that the applicant was unable to perform his duty, as the MOC points out, he was found physically fit for separation (which also implies fit for retention) at his final separation medical examination. 

3.  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.  There is no right to a medical evaluation board.  Individuals are referred to a medical evaluation board when, in the opinion of their attending military doctors, a medical condition may make them incapable of performing duty.  His service was not interrupted by his various medical conditions and he was not eligible for physical disability processing.

4.  The 1998 medical evaluation by the MEPS is irrelevant to his 1989 separation from active duty.  Not only had several years transpired, but on the more recent occasion his physical condition was being compared to entrance standards rather than retention standards.

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.
to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___RVO_  __JHK __  __EWL __  DENY APPLICATION

						Karl Schneider
						Director

INDEX

CASE ID	AR1999021558	
SUFFIX		
RECON	 	
DATE BOARDED	 20000503	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.