MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:            1 July 1999       
	DOCKET NUMBER:   AR1999022485

	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:

	Ms. Joann H. Langston		Chairperson	
	Mr. Fred K. McCoy		Member	
	Mr. Stanley Kelley		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, the applicant requests physical disability retirement.  

APPLICANT STATES:  He was on active duty from 1972 until 1981, and then served with the Army Reserve and Army National Guard continuously (except for two breaks in service) until October 1997.  He was refused a medical retirement, and instead was discharged because of his physical condition.  He was denied an appearance before a medical board in violation of Army regulations.  He formally requested a medical board.  His unit misplaced his physical [examination report].  He was unjustly denied this board, especially in view of his length of honorable service.   

COUNSEL CONTENDS:  That the applicant’s VA records be obtained to determine the degree of his disabilities and what disabilities were related to military service.  The available records indicate that the Army was aware of the need to schedule the applicant for a medical board, however, the process what not completed.  Counsel submits a copy of a section of Title 10 U.S.C., which authorizes temporary special retirement for soldiers of the Selected Reserve with at least 15 years of qualifying service, who no longer qualify for membership in the Selected Reserve because of physical disability.  COPY OF COUNSEL’S STATEMENT IS ATTACHED.

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

The applicant enlisted in the Army for three years on 7 July 1972.  On               19 June 1973, while assigned to Fort Lewis, Washington, he received punishment under Article 15, UCMJ, for wrongful use of marijuana.  He was discharged at Camp Casey in Korea on 17 March 1975, and reenlisted the next day for five years.  On 3 December 1976 he received punishment under Article 15 for disobeying a lawful order.

On 1 May 1978 the applicant was promoted to Sergeant, and on 21 July of that year he received punishment under Article 15 for violation of a lawful general regulation.  He was discharged from the Army in the rank of Sergeant at Fort Hood, Texas, on 17 March 1980.  He had a total of 7 years, 8 months, and        11 days of active service.

The applicant enlisted in the Army Reserve for one year on 11 September 1981, reenlisted for 6 years on 30 August 1982 and was entitled to a $1800.00 enlistment bonus.  He was discharged from the Army Reserve on                       21 October 1983 and enlisted in the California Army National Guard for 6 years 

on that date.  He was discharged from the Army National Guard on                     14 January 1986 and enlisted in the Army Reserve for 3 years.  He was discharged from the Army Reserve on 13 January 1989 and on                           25 October 1991 he reenlisted in the Army Reserve for 6 years for the student loan repayment program (SLRP).

On 3 March 1993 the applicant was assigned to the Army Reserve Control Group (Reinforcement) at St. Louis, because of his unsatisfactory participation with his Reserve unit in Belton, Missouri.  On 16 November 1993 he volunteered and was reassigned back to that unit.  On 23 September 1994 he volunteered and was reassigned to a Reserve unit in Emporia, Kansas. 

The applicant’s chronological statement of retirement points, dated                     30 October 1996, shows that he had two qualifying years of service for retirement during the period from the 11 September 1986 to 11 September 1995.     

In a 24 March 1995 letter to his commanding officer the applicant informed that official that he had missed the last two monthly meetings because of severe medical problems, which entailed surgery with a total right hip replacement.  He stated that he had a long medical history of injuries and other medical problems, and formally requested a medical evaluation board.

In a 10 April 1995 letter a private physician in Kansas City stated that the applicant underwent orthopedic evaluation and subsequent right hip replacement on 1 March 1995, and that at present, he was totally disabled.

In a 15 July 1995 report of medical examination, the applicant was medically disqualified from further service, with a physical profile of T2 1 T4 1 2 1.  That report indicated that the applicant was pending a medical evaluation board, that he had recent hip surgery and was unable to ambulate without assistance.  He was recuperating from an operation and should be evaluated in three months or go before a medical evaluation board.  In the report of medical history the applicant furnished for the examination, he stated that he was in poor health.  That report indicated that he stated that he coughed up blood in 1975 in Korea, that he had a history of bilateral hip replacement, trouble with both knees and ankles, dizziness/fainting due to hypertension, history of tonsillitis, hearing loss, oral abscesses.  He had a head injury as a result of a motor vehicle accident in Korea.  He has a rash that comes and goes, has chest pains, and back pain since 1973, depression due to physical problems, went through a black out phase in Korea, takes medication for nervousness, and had numerous hospitalizations. 

On 28 December 1995 his unit administrator notified the applicant that he was medically disqualified for retention based on his 15 July 1995 physical examination, and was offered various options, one of which was to request a medical evaluation board in accordance with Army Regulation 40-3.

On 13 February 1996 the applicant’s commanding officer requested a medical evaluation board for the applicant.  That request was returned on 21 March 1996 advising that a current physical examination was required, and to provide information concerning any illnesses or injuries that the applicant may have had while on active duty, to include any approved line of duty (LOD) determinations. 

A 20 April 1996 report of medical examination, the purpose of which was for a medical board, indicates that the applicant was medically disqualified for retention with a physical profile of 1 1 4 4 2 2, because of limitations in hip mobility with evidence of bilateral hip surgery.  In the report of medical history he furnished for the examination, the applicant stated that he was in poor health, that he had total hip replacement in March and July of 1995, that he suffered stress and depression 1995, and was currently being treated for depression and stress, among other medical problems. 

A 2 March 1997 report of medical examination also indicates that the applicant was medically disqualified for retention with a physical profile of 1 1 4 1 1 2.

The applicant was discharged from the Army Reserve on 24 October 1997.  Information from the Total Army Personnel Command in St. Louis on                   2 June 1999 indicates that he was discharged on his separation date (ETS).  

Army Regulation 40-3, chapter 7, provides for medical evaluation boards (MEBDs), and are convened to document a service member’s medical status and duty limitations insofar as duty is affected by the member’s medical status.  Situations that require consideration by a MEBD include those involving Reserve component personnel on active duty for training (ADT) or inactive duty for training (IDT), whose fitness for further military service upon completion of hospitalization is questionable, and those who require hospitalization beyond the termination of their tour of duty.  Consideration by a MEBD also includes those involving a Reserve component member who requires evaluation because of a condition that may render him unfit for further duty. 

Army Regulation 40-501 provides information on medical fitness standards for enlistment, retention, and related policies and procedures.  Chapter 9 sets basic policies and procedures for medical examinations.  It covers those examinations used to medically qualify individuals for entrance into and retention in the Army Reserve.  Normally, Reservists who do not meet the fitness standards will be transferred to the Retired Reserve or discharged.  They will be transferred to the Retired Reserve only if eligible and if they apply for it. 

Army Regulation 635-40, chapter 8, outlines the rules for processing through the disability system soldiers of the Reserve component who are on active duty for a period of less than 30 days or on inactive duty training; and outlines the criteria under which soldiers of the Reserve component, whether or not on extended active duty, apply for continuance in the active Reserve.

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 soldier 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. 

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 an 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.

Paragraph 41-8f concerns injury or disease while on IDT, and states, in effect, that a member of the Army is presumed to have been in sound physical and mental condition on entering active service or authorized training.  To overcome this, it must be shown by substantial evidence that the injury or disease, or condition causing it, was sustained or contracted while neither on active duty nor in authorized training.  The following will be sufficient evidence of inception before service:  (a) lesions or symptoms of chronic disease so near the date of entry on active duty or authorized training that they could not have started after entry, or (b) disease within less than the minimum incubation period after entry on authorized training.  It is further presumed that even if the provisions above are overcome by such evidence, any other condition, resulting from the pre-existing injury or disease, was caused by service aggravation.  Specific findings of natural progress of the pre-existing injury or disease, based upon well established medical principles, as distinguished from medical opinion alone, are enough to overcome the presumption of service aggravation. 

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

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.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

The National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337) amended Title 10, United States Code, section 1331a© (now codified under section 12731a).  The modification allows Reserve component soldiers who are involuntarily separated between 5 October 1994 and 30 September 1999 because of medical unfitness to elect transfer to the Retired Reserve for Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service toward Reserve component retirement.

Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to soldiers and former Reserve Component soldiers.  Paragraph    2-8 of that regulation describes qualifying service, as pertains to this case, as service performed as an enlisted person in an active status in a Reserve component or in active federal service.  Before 1 July 1949 service in the National Guard, the Army Reserve in an active Reserve status, and the Army without specification of component is qualifying service.  After 30 June 1949, a reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying 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.  Apparent is the fact that the applicant was medically unfit for military service as confirmed by a report of medical examination in 1995 and subsequent examinations in 1996 and 1997.  There is, however, no evidence of record that indicates that the applicant’s medical problems were incurred while on active duty or while in an active status in the Army Reserve or the Army National Guard, either during active duty for training or during unit training assemblies (inactive duty for training).  He was discharged from the Army on 17 March 1980, and the applicant's continued performance of duty at that time raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.  His discharge from the Army Reserve on his ETS, 24 October 1997, may have been overdue, that is, he could have been discharged earlier because of being medically unfit because of his physical disability; nonetheless, his discharge was effected, and the applicant has not shown that his disabilities were incurred or aggravated because of his performance of annual training, active duty for training or IDT.  Consequently, he is not entitled to physical disability retirement.

2.  The applicant had 7 years, 8 months, and 11 days of active duty in the Regular Army; and his records show only 2 years of qualifying service in the Army Reserve.  There is no evidence of record, nor has the applicant provided any, to show that he had 15 years of qualifying service for retired pay.  He is therefore not entitled to retirement with at least 15 years of service as authorized by 10 U.S.C. section 12371a.

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

4.  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.

5.  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

___jhl__  __fkm___  ___sk_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022485	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990701	
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.