MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           9 February 2000                   
	DOCKET NUMBER:   AR1999025554

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr. 		Chairperson	
	Ms. Deborah S. Jacobs 		Member	
	Ms. Carol Jo Suiter 		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.

APPLICANT STATES:  That he was granted an 80 percent service connected disability rating by the VA within 9 months after his separation from the Army, which indicates that the Army did not monitor his case.  He submits a copy of the VA rating decision showing a combined rating of 80 percent service connection.  He is appealing most of that decision.     

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

The applicant enlisted in the Army for 5 years on 28 February 1989 and remained on continuous active duty until his discharge in 1998.  The applicant completed numerous military courses and served in various locations throughout the world, to include Fort Dix, Fort Meade, Hawaii, and Southwest Asia.  He has been awarded the Defense Meritorious Service Medal, the Joint Service Commendation Medal, the Army Commendation Medal, the Army Achievement Medal, two awards of the Army Good Conduct Medal, the Southwest Asia Service Medal with two bronze service stars, and the Kuwait Liberation Medal, among his other awards.  He attained the rank of Sergeant.  

On 6 May 1997 the applicant extended his enlistment until 29 December 1997 in order to complete medical treatment.

The applicant’s NCO evaluation report for the period ending November 1997 shows that his rater indicated that the applicant’s profile did not limit the performance of his assigned duties, that the applicant displayed outstanding endurance; capable of making tough decisions under pressure.  Both his rater and senior rater considered him fully capable in his overall potential for promotion and service in positions of greater responsibility.

In December 1997 the 25th Infantry Division authorized the applicant to remain on active duty for an additional 30 days for the purpose of completing medical and physical evaluation board proceedings.  His new separation date (ETS) was      27 January 1998.  

On 30 December 1997 the Chief, Patient Affairs Branch stated that the applicant had decided to waive the medical evaluation board and file through the VA.  She requested a new ETS date of 18 January 1998 be approved, and stated that the applicant’s affidavit was enclosed. 

On 30 December 1997 the applicant in an oath taken before the Chief, Patients Affairs Branch of Tripler Army Medical Center in Hawaii, and after having been advised of his rights and advantages of remaining in an active duty status in the Army beyond his scheduled date of release for the purpose of completion of hospital care and/or physical disability evaluation under the provisions of Chapter 61, Title 10, USC, and after being duly sworn, deposed and said:
“I [SOLDIER’S NAME, SGT] have been fully advised by the undersigned officer of the rights and advantages that may accrue to me by voluntarily remaining on active duty in the Army beyond the scheduled date of my release for the purpose of completing hospital care and/or physical disability evaluation under the provisions of Chapter 61, Title 10, USC, and have been further fully advised that if I elect to be discharged or released from active duty as scheduled, I will not, after such discharge or release from active duty, be eligible for separation or retirement for physical disability.  Wherefore, in consideration of the above, I (DO) (DO NOT) desire retention on active duty in the Army beyond the scheduled date of expiration of my term of service.”

The applicant crossed out the word “DO”, and initialed to show that he had crossed out that word.  He signed the aforementioned statement.  It was witnessed and signed by the Chief, Patient Affairs Branch.

The applicant was discharged on 18 January 1998 because he completed his required active service.
    
In a 5 February 1999 decision, the VA award the applicant service connection for residuals for his right shoulder injury, status post surgeries, 30 percent; residuals right knee injury, 10 percent; bronchial asthma with moderate chronic obstructive pulmonary disease, 10 percent; residuals injury to his right thumb, 0 percent; residuals sebaceous cyst behind left ear, 0 percent; allergic rhinitis with associated polypoid changes and septal deviation and history of sinusitis,         30 percent; residuals surgery for zygomatic fracture left cheek area, 0 percent; residuals laceration scar of chin, 0 percent; residuals removal of  moles from right shoulder and right cheek, 0 percent, snapping right  psoas tendon syndrome,       0 percent, mild gastritis, 0 percent; and adjustment disorder with anxiety,           30 percent.  His combined evaluation was 80 percent.

In a 21 July 1999 letter to this Board the applicant indicated that a new rating  
decision by the VA increased his service connected right shoulder condition from 30 percent to 40 percent, thus granting him entitlement to individual unemployability.  He stated that he was now rated as 100 percent service connected.  He attached a copy of that VA rating decision.

Army Regulation 635-40 establishes the Army physical disability evaluation system according to the provisions of chapter 61, title 10, USC.  It 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.  Paragraph 3-7 states in pertinent part that a soldier whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his consent, be retained in the service until he has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.  Enlisted soldiers on extended active duty may be retained on active duty according to the provisions of Army Regulation 635-200, Chapter 1. 

Army Regulation 635-200 provides for the separation of enlisted soldiers.  Paragraph 1-26 states in pertinent part that a soldier may only be considered for retention past the set release date when continued health care is required and/or physical disability processing is required or has been initiated.  No soldier will be retained beyond his scheduled release date without written consent (see affidavit below).  NOTE:  The affidavit depicted in the regulation is exactly the same as that signed by the applicant on 30 December 1997.  The consent must be signed by the soldier.  An officer authorized by law to administer oaths under the UCMJ, Article 36, will swear the soldier (insuring that the soldier personally appears before the officer), and tell the soldier how he will benefit from remaining on active duty in the Army beyond the scheduled date of release to complete hospital care or a physical evaluation (or both) under chapter 61, title 10, USC; and that if he elects to be discharged or released from active duty as scheduled, he will not, after such discharge or release from active duty, be eligible for separation or retirement for physical disability.

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, prior to his discharge, made a decision not to remain on active duty beyond his scheduled release date for the purpose of completing hospital care and/or physical disability evaluation processing.  He is not eligible for physical disability retirement or discharge.

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

3.  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.

4.  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

___cjs___  ___dsj___ ___rvo___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999025554	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990209	
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.  177	108	
2.		
3.		
4.		
5.		
6.