MEMORANDUM OF CONSIDERATION

IN THE CASE OF:      

BOARD DATE:           29 March 2000
DOCKET NUMBER:   AR1999026564

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. James P. Steuve		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: Reconsideration of his application to correct his records by awarding him either a physical disability retirement or a Reserve Retirement at age 60.

APPLICANT STATES:  In effect, that he showed the recruiter his Certificate of Disability Discharge (CDD) when he enlisted in the Reserves and was found medically fit for duty.  The applicant contends that his acceptance into the Reserves shows that either he should have received a medical discharge or that he should have been allowed to continue to serve in the Reserves.  He further contends that he served as an active duty Reservist working five days a week and attending (drill) meeting on Thursday nights. 

COUNSEL STATES:  In effect, that the applicant should have either been afforded a disability retirement or should have been allowed to continue in the Reserves in order to qualify for a Reserve Retirement.  He avers that the Board’s 1958 decision was flawed as it did not address the applicant’s active duty service in 1953 and 1954.  Additionally, he contends that since the applicant was found fit for induction and served on active duty (in the Reserves) either his condition was not disqualifying and he should have been allowed to continue toward his Reserve Retirement or if it were of such severity as to warrant his discharge than he should have received a physical disability retirement.

NEW EVIDENCE OR INFORMATION:  The applicant's military records cannot be located and are presumed lost.  Information herein was obtained from reconstructed personnel records and the memoranda prepared to reflect the Board's seven previous considerations of his case (COPIES ATTACHED).

While the individual arguments submitted through counsel are not technically new, the interrelationship between the applicant’s two periods of service and the medical condition has not been addressed. Therefore, it constitutes new argument that requires Board review.

The applicant is credited with service in the Philippine Scouts from 19 February 1941 to 2 March 1945.  During this period of service he was listed as missing in action from 4 May 1942 until 23 January 1945.  He enlisted in the US Army on 3 March 1945 and was honorably discharged 12 February 1946.  He again enlisted in the US Army on 11 March 1946 and served until 16 July 1948.  At this time he was found to be suffering from a neurotic depressive reaction, incurred in the line of duty.  He was deemed medically unfit for service, honorably discharged with a CDD and awarded a 10% VA disability.  (Legislation to authorize physical disability retirement for enlisted personnel with less than 20 years of service was not in effect at this time.)

The applicant enlisted in the US Army Reserve (USAR) on 3 November 1953 and served until 12 February 1954.  He was administratively separated with an honorable discharge based upon a determination he was medically disqualified for retention by reason of his VA rated, service-connected condition.  There is no finding of aggravation of this condition.

The limited records indicate that the applicant continued to receive a 10% disability evaluation from the VA until 1972 when it was increased to 70%.

On 3 February 1977 the Board voided the applicant’s USAR discharge and corrected his records to show that he was transferred to the Retired Reserve effective 12 February 1954.  This action specifically indicated that it did not result in any entitlement to or enhancement of benefits.

In October 1977, this Board determined that the applicant’s record showed no  active duty service during his three months in the USAR and that his medical disqualification was for the same condition that had resulted in his discharge in 1948.

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, it 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.

Army Regulation 600-8-1 prescribes the policies and procedures concerning line of duty determinations.  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 a 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.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

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.  As there was no provision in 1948 for granting physical disability retirement to service members with less than 20 years of active service, the applicant’s 1948 discharge was correct and proper.

2.  The applicant had a medical condition that existed prior to his entry into the USAR in 1953.

3.  Whether or not the applicant was medically qualified for enlistment in the USAR is irrelevent.  The applicant was administratively discharged due to the fact that he was in receipt of a service-connected disability not because this condition was found to be medically unfitting.

4.  The Board is currently unable to verify the exact nature of the applicant’s USAR  service, but even if that period was on active duty, he would still not be entitled to physical disability separation.  The applicant clearly had a preexisting condition that rendered him not qualified for retention.  Further, there is no indication of aggravation of that condition during this three months of Reserve service.

5.  The applicant did not serve in the Reserve in any capacity following his 1954 discharge.  Nor did his combined periods of service afford him the necessary 20 qualifying years to receive Reserve Retirement pay at age 60.

6.  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.

7.  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

__RGH__  __MDM__  __JPS___  DENY APPLICATION

	Karl F. Schneider
	Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026564	
SUFFIX		
RECON	 	
DATE BOARDED	20000329	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.	136.00	
3.	136.04	
4.		
5.		
6.