MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 September 1999                   
	DOCKET NUMBER:   AR1999027910

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Lester Echols		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:  That his physical disability separation with severance pay be changed to a medical retirement.

APPLICANT STATES:  That he defers specific comments for his requested hearing.  If his hearing is denied, then he will submit evidence.

COUNSEL CONTENDS:  Counsel makes no contention.

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

After having had prior enlisted service, he was appointed a warrant officer, military occupational specialty (MOS) 711A (Personnel Technician) on 19 May 1978.  He was assigned to the 82d Adjutant General Company, 82d Airborne Division in 1982.

In August 1986, a medical evaluation board (MEB) referred the applicant to a physical evaluation board (PEB) with diagnoses of mechanical low back pain secondary to marked degeneration of the L5 S1 disc, but no radicular pain, possible allergy to tomatoes and Aspartame, and borderline hypertension.  The applicant certified that the board accurately covered all of his medical conditions. His supervisor had provided a statement that the applicant was able to handle the administration requirements normally expected of an individual in his MOS, but he could not take regular physical fitness training with his soldiers and that affected his ability to lead his soldiers.  His medical condition may also have had a bearing on his failure to stay within weight limits.  (The applicant’s Officer Evaluation Reports since 1984 show he had a profile that prevented his taking the Army Physical Fitness Test but never hindered him from accomplishing his duties.)

In October 1986, an informal PEB found the applicant unfit for further service by reason of lumbosacral strain, with characteristic pain on motion, and recommended his separation from the service with severance pay and a 10 percent disability rating.  He initially concurred with the findings but later appealed the decision, stating he had a problem with both his ankles.

An MEB addendum noted the applicant had tenderness over the ankle joint but there was no clinical evidence of instability.  The impression was ankle pain without radiogaphic evidence of instability.  If he were developing arthritis in the ankles it was very early in that neither the x-rays nor the bone scan had been positive in the ankles.

In February 1987, a formal PEB found the applicant unfit for further service by reason of lumbosacral strain, with characteristic pain on motion, and recommended his separation from the service with severance pay at a 10 percent disability rating.  He did not agree with the recommendations but did not desire to submit a letter of rebuttal.  

On 5 May 1987, the applicant was discharged, by reason of a physical disability, with severance pay.  He had completed 16 years, 10 months and 19 days of creditable active service.  

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 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.  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.

2.  Although the applicant requested a personal appearance before the Board, there is no statutory or regulatory right to a formal hearing.  Formal hearings are granted when the Board determines that a case is so complex or the records so incomplete that only sworn testimony can provide the necessary information.  

3.  The applicant failed to provide any evidence that supports his contention he should have been medically retired (received a disability rating of at least 30 percent) and the evidence of record does not support changing his disability rating.

3.  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

__eb____  __le____  __jps___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999027910	
SUFFIX		
RECON		
DATE BOARDED	19990930	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.02	
2.		
3.		
4.		
5.		
6.