MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 September 1999  
	DOCKET NUMBER:   AR1999022752

	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. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Kenneth L. Wright		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 that a physical evaluation board (PEB) convene to reconsider his case (an increase in his physical disability rating), and that the order retiring him from the Army be corrected to show that his disability was a direct result of armed conflict or caused by an instrumentality of war and resulted from a combat related injury.

APPLICANT STATES:  That he sustained a neck injury while participating in Operation Desert Storm.  He was under doctor’s care while on terminal leave, and received supports to aid him while walking, and also received a wheel chair, which he reported to the medical board.  He also had other ailments, which were a direct result of his spinal cord injury incurred during Operation Desert Storm.  He lists the injuries that were boarded, and states that his order and his            DD Form 214 should be corrected to show how he was injured (instrumentality of war, combat related).  The applicant states that all the medical problems he had before retirement exist to the present, and that his spinal cord injury was not considered by the board because the doctor present at his hearing was his vascular surgeon.  He is unemployable, on medication, and at home most of the time with a zero percent disability rating.    

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

The applicant entered the Army in 1970 and served on continuous active duty until his retirement in 1997 as a special forces Sergeant Major.  He served at various locations throughout the world, including Fort Knox, Kentucky, Fort Leonard Wood, Missouri, Fort McClellan, Alabama, Fort Bliss, Texas, Fort Benning, Georgia, Fort Bragg, North Carolina, Fort Campbell, Kentucky, Vietnam, Germany, Saudi Arabia, and Somalia.  The applicant completed numerous military schools, to include recruiter, motor transport operator, infantry, airborne, special forces, and the Sergeants Major Academy.  He has been awarded the Soldier’s Medal, the Bronze Star Medal with one oak leaf cluster, the Meritorious Service Medal with one oak leaf cluster, and the Combat Infantryman Badge, among others.

A medical evaluation board (MEBD) report shows that the applicant had numerous past injuries.  He was seen by the vascular surgery clinic at 
William Beaumont Army Medical Center in El Paso for an evaluation of his right lower extremity.  That report indicated that he had a gunshot wound to his right leg in 1983 while on duty and was treated by a special forces medic requiring drainage and sutures and was never treated surgically otherwise.  His past medical history was otherwise unremarkable.  That board indicated that a review showed that the applicant had various ailments to include intermittent headaches, chronic hearing loss, left eye weakness, chronic neck pain, clavicular pain, occasional chest pain, radiating type pain his right arm, episodes of poly-arthralgia and poly-myalgia in the joints of his upper and lower extremity, and right lower extremity cramping with exertion.  The board indicated that those pains, at times prevented him from performing strenuous physical activity.  A physical examination revealed a well developed, well nourished white male in no acute distress.  He underwent treadmill stress testing which revealed findings consistent with right lower extremity ischemia.  He was able to walk for six minutes on the treadmill before his right lower extremity pressures dropped precipitously, not returning to normal until after eight minutes, which was consistent with a significant stenosis of one of the vessels in the right lower extremity.   

The board determined that he had numerous ailments and injuries and was presented to the board because of his inability to perform his duties secondary to his right lower extremity arterial insufficiency.  He would require a permanent profile which would prevent him from any prolonged standing, marching or running, unacceptable in his specialty. 

A copy of the MEBD proceedings, dated 21 April 1997, obtained from the Army physical disability agency (PDA) shows that that board determined that he had arterial insufficiency of the right lower extremity without risk factors for atherosclerotic peripheral vascular disease and without markers of systemic disease, dating from 1996; chronic neck and neurologic pain of the right upper extremity secondary to his neck injury and subsequent C5-C6 discectomy, dating from 1991; chronic knee and ankle pain, dating from 1981; chronic left Achilles tendonitis, dating from 1992; chronic knee and ankle pain bilaterally, dating from 1981; and bilateral high frequency hearing loss, dating from 1987.  The board recommended that he be referred to a physical evaluation board (PEB).  The applicant concurred.

A copy of a memorandum from a senior physician assistant at Fort Bliss, dated   3 July 1997, shows that the applicant had been treated for various medical conditions for acute minor illnesses, as well as a myriad of chronic illnesses related to injuries sustained in airborne, combat, or special operations during his career.

On 15 July 1997 a formal PEB met and determined that the applicant’s pain his right lower extremity made him unfit to perform the duties required of a Sergeant Major in his specialty, and that he be retired with a permanent disability, with a rating of zero percent.  The board determined that the other conditions listed in the MEBD diagnoses were considered by the PEB and found to be not unfitting and therefore not ratable.  The proceedings indicated that the applicant appeared before this board and was represented by counsel.  The copy of the election to the formal physical evaluation board proceedings, which the applicant furnished with his request, shows the applicant’s name, rank, and social security number typed in the appropriate block, but without a signature or a date, or an election made by the applicant, i.e., concur, nonconcur.  The applicant indicated on the copy of that election that he was always available for signatures but never told that he needed to sign this form.     

The copy of the election form obtained from the Army physical disability agency shows that the applicant concurred in the determination made by the PEB, and 
that he signed the form, dating it on 17 July 1997. 

The applicant submits a copy of a list to the VA listing his ailments in injuries for which he is apparently applying for compensation.

The applicant submits medical records showing that he received a wheel chair and a brace prior to his retirement.

The applicant was retired for permanent physical disability, with a disability rating of zero percent on 9 December 1997.  His retirement order shows that his disability was not based on an injury or disease received in line of duty as a direct result of armed conflict or caused by a instrumentality of war, and did not result from a combat related injury.

Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

Guidance provided to the Board from the Physical Disability Agency (PDA) specifies that a disability or injury is considered to be a direct result of armed conflict if the injury or disease was incurred while the solider was engaged in armed conflict, an operation or incident, involving armed conflict or the likelihood of armed conflict, while interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force, or while escaping or attempting to escape from such prisoner of war or detained status.  The disability must also be based upon a direct causal relationship between the armed conflict, operation, prisoner of war, or detained status and the injury.  This is not a casual connection having something occur to the soldier while in an area of armed conflict or hostilities.  There must be a direct cause and effect between the armed conflict and the disability.

The instrumentality of war may also be a device not designed primarily for military service, but it is used in such a way that it subjects the individual to a hazard peculiar to the military service.  There must be a direct causal relationship between the injury and the instrumentality of war.  For an injury sustained from an instrumentality of war it must have been incurred during a period of war as defined by law.

An injury may be found to be a combat related injury if it incurred as a direct result of armed conflict, while engaged, or performing, in extra hazardous service, or under conditions simulating war.

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.  A PEB determined that the applicant could not perform his duties as a Sergeant Major because of pain to his right lower extremity.  That board  determined that that condition was not based on a disability or disease as a direct result of armed conflict or caused by an instrumentality of war and incurred during a time of war, and that it did not result from a combat related injury.  The board also considered the other medical problems diagnosed by the MEBD, and determined them to be not unfitting and not ratable.  The applicant appeared before this formal PEB and was represented by counsel.  Notwithstanding his contentions, the applicant concurred in the findings and recommendations of the formal PEB.

2.  The applicant’s subsequent contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by retirement from the service.  Nor has the applicant provided any evidence or information to show that his physical disability (pain to his right lower extremity) was a direct result of armed conflict or caused by an instrumentality of war, incurring during a period of war; or that his disability resulted from a combat related injury. 

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

___sk___  ___jea__  ____klw_  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022752	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990901	
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.