MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 February 2000                   
	DOCKET NUMBER:   AR1999028428

	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.

	Mrs. Nancy Amos		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:  That his retirement be changed to a physical disability retirement and that his retired grade be changed to lieutenant colonel.

APPLICANT STATES:  That he was discovered to have sleep apnea in November 1996.  His military medical records show a consistent prognosis of fatigue but no apparent cause.  Supporting evidence is as listed on the DD Form 149 and the enclosure to the DD Form 149.

EVIDENCE OF RECORD:  The applicant's military records (his performance fiche, record of officer evaluation reports, is not available) show:

After having had prior active duty, he re-entered active duty as a U. S. Army Reserve (USAR) officer on 3 September 1985.  He was promoted to major on     8 September 1987.  

On or about 19 November 1993, the applicant requested voluntary early retirement with a retirement date of 1 March 1994.

On 29 November 1993, the applicant was notified he had been selected for USAR promotion to lieutenant colonel with a promotion eligibility date of 7 July 1994.

On 15 December 1993, the U. S. Army Reserve Personnel Center approved the applicant’s request for voluntary early retirement effective 1 March 1994.

On 1 March 1994, the applicant was retired in the grade of rank of major after completing 15 years, 1 month and 7 days of creditable active federal service.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  It applies to the Active Army, the Army National Guard and the U.S. Army Reserve. In pertinent part, it states 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.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that a soldier is fit.  Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.

Title 10, U. S. Code, section 1372(3) states that a member who is retired for physical disability is entitled to the grade equivalent to the highest permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.  (Section 1370 states the general rule is for a commissioned officer to be retired in the highest grade in which he served on active duty satisfactorily.)

In the processing of this case, an advisory opinion was obtained from the medical advisor to the Army Review Boards Agency.  The advisory opinion noted some entries in the applicant’s military medical records addressing drowsiness and feelings of fatigue and tiredness but on his SF Form 93, Report of Medical History dated 11 January 1993 he did not address any sleep difficulties or disorders.  The VA denied his claim for narcolepsy in July 1994 and a VA evaluation dated 11 December 1996 noted there was no evidence that he had a central apnea syndrome, narcolepsy and no neurologic illness underlying his excessive daily sleepiness.  The opinion noted that no new or substantive medical evidence was provided in support of his claim.

The applicant rebutted the opinion (SEE ATTACHED), noting that during his second extended tour of active duty he consistently visited each hospital with a complaint of chronic prostatitis and abnormal/excessive daytime sleepiness, attributing it to chronic prostatitis.  In effect, there were sufficient manifestations of a sleeping disorder during active military service to establish chronicity of a “sleeping disorder” and therefore a retirement for physical disability should have been given.

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, 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.  The “presumption of fitness” rule applies unless the preponderance of evidence shows the applicant was physically unable to perform adequately the duties of his office, grade or rank.  His officer evaluation reports are not available but presumably they showed he was able to perform his duties in such a highly commendable manner that he was selected for promotion to lieutenant colonel.  This was during a period of downsizing when only the best officers with the highest potential for continued high performance of their duties were being allowed to remain on active duty.  

3.  The applicant has provided no evidence to rebut the evidence that shows he was able to physically perform his duties.  Therefore, it is not appropriate to change his retirement to a physical disability retirement and not appropriate to change his retired grade to lieutenant colonel.  Any subsequent rating action by the VA would not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to adjust its discharge accordingly. 

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

__rvo___  __dsj___  __cjs___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028428	
SUFFIX		
RECON		
DATE BOARDED	20000209	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.