MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            16 December 1999                  
	DOCKET NUMBER:    AR1999026114

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. Raymond V. O'Connor, Jr.		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:  That her transfer to the Retired Reserve due to medical disqualification be corrected to placement on the permanent disability retired list (PDRL).

APPLICANT STATES:  Since she was injured in line of duty while attending annual training, she should have been retired with disability benefits.

In support of her application she submits a VA decisional document wherein she was granted a finding of unemployability.

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

She enlisted with no prior service on 24 November 1986.  She was awarded the military occupational specialty of personnel action specialist and was promoted to pay grade 
E-3.

While on active duty she accepted nonjudicial punishment on two occasions:  The first for disobeying a lawful order, and for two separate instances of making a false official statement.  The second for disobeying a lawful order.  

In December 1987 the applicant’s commander recommended that she be involuntarily separated due to unsatisfactory performance.  In support of that recommendation the applicant’s sergeant major submitted a statement in which he outlines how he had witnessed the applicant shirking her duties, being belligerent, threatening, vulgar and disrespectful to superior noncommissioned officers, making false accusations against superior noncommissioned officers, bouncing a $3,500.00 check for a new car, and bouncing a $500.00 check.  He continued that the applicant “attempted to manipulate people, misstate facts, and create enough confusion about what she did, thought, or tried to do, to allow her to escape all retribution.  She lied about th3e events that surrounded her [nonjudicial punishment] and does not seem to be affected at all when the lies are exposed.  She misunderstands what the uniform is, what her job is, and where she should be, but always to her advantage.  She can’t be trusted.”

The applicant’s commander’s recommendation was approved and on 14 January 1988 she was involuntarily released from active duty by reason of unsatisfactory performance and given a characterization of service of under honorable conditions (general).  She was transferred to the USAR Control Group in conjunction with her separation.

Thereafter she accepted assignment to a USAR unit.  On 17 June 1990, the first day of annual training, the applicant reported hurting her back while erecting a tent.  She was initially treated for that injury on 20 June 1990 and was diagnosed as having a sprained back.

On 19 July 1993 the 81st Army Reserve Command Surgeon determined that the applicant was medically disqualified due to progressive degenerative disc disorder.  

Based on that finding, the applicant was given the option of elected discharge, transfer to the retired reserve, or to request a waiver of her medical disqualification.  She elected transfer to the retired reserve.  Accordingly, on 27 September 1993 the applicant was transferred to the retired reserve.
Army Regulation 635-40 provides the guidance for convening MEB’s and PEB’s.  Paragraph 3-4 of this regulation states that in order to be eligible to receive retirement or severance pay benefits the disability must have been incurred or aggravated as the proximate cause of performing active duty.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The claimed to have sprained her back on the first day of annual training while erecting a tent.  However, there are no witness statements to support her contention.

2.  Considering the applicant’s history of distorting facts, falsifying official documents and making knowingly false statements, the Board cannot accept that her disability was the proximate cause of performing her military duties.

3.  The fact that the VA has awarded the applicant disability benefits is not relevant to the Army.  The two agencies are governed by different laws and regulations and have different purposes.
 
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

__fkm___  __rvo____  _sk_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999026114	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19991216	
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.	108.04	
2.		
3.		
4.		
5.		
6.