MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           25 July 2000                   
	DOCKET NUMBER:   AR1999028755

	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. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine 		Chairperson	
	Mr. Stanley Kelley 		Member	
	Mr. John H. Kern 		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:  Physical disability retirement.  

APPLICANT STATES:  That he passed all required physical examinations for induction, served for 10 months and 12 days, and was given an assignment while on active duty at the time his condition was diagnosed.  He was discharged from the Army without benefits because the determination was made that his condition was not service connected.  This condition was not diagnosed prior to his entry on active duty and he had no symptoms prior to his service.  This occurred before the Americans with Disability Act.  He is unemployable, and this action is totally unjust.

The applicant submits with his application nine letters from individuals who attest to the fact that he was in good health prior to entering the Army, and that he had no difficulty with walking, or with his balance, or with any abnormal condition.  

COUNSEL CONTENDS:  Counsel failed to respond to the notification that the applicant’s case was available for review.

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

The applicant enlisted in the Army for two years on 10 March 1969.  A report of medical examination indicates that he was medically qualified for enlistment with a physical profile serial of 1 1 1 1 2 1.  In the report of medical history he furnished for the examination, the applicant indicated that he had, or had had, mumps, shortness of breath, cramps in his legs, a recent gain or loss of weight, lameness, foot trouble, depression or excessive worry, and nervous troubles.  That report indicated that he had an appendectomy at age 7, had hepatitis, and had stomach cramps.  

The applicant was assigned to Fort Knox, Kentucky for training, completed training as a cook, and in August 1969 was assigned to a medical battalion in Germany as a cook’s helper.  

On 17 November 1969 the applicant requested discharge for physical disability.  He stated that he had been informed that, based upon the findings and recommendations of a medical board, he was considered to be unfit for retention in the military service by reason of physical disability which was found to have existed prior to his enlistment and which was neither incident to nor aggravated by his military service.  He went on to state that he had been fully informed and understood that he was entitled to the same consideration and processing as any other member of the Army who was separated for physical disability.  He stated that he understood that included consideration of his case by the adjudicative system established by the Secretary of the Army for processing disability separations.  He stated that he elected not to exercise that right.  He stated that he understood that entitlement to VA benefits would be determined by that agency.

The applicant stated that if his application was approved, he understood that he would be separated by reason of physical disability EPTS (existed prior to service) and would receive a discharge of the type commensurate with the character of his service, as determined by the officer designated to effect his separation.  

The medical board proceedings, which the applicant referred to in his statement, are not available.

On 5 January 1970 the separation authority approved his request and directed that he be discharged under the provisions of Army Regulation 635-40,      chapter 9.  He was discharged at Fort Dix, New Jersey under the provisions of Army Regulation 635-40.  His discharge was honorable.  He had 10 months and  12 days of service. 

In a 2 June 1999 statement, the applicant’s family physician stated that the applicant was his patient from June 1965 through May 1967, and that in June 1965 he had a complete physical examination, which was completely normal.  He had no symptoms during the time he cared for him of any locomotion difficulties, including ataxia.  His gait was normal.

In a 4 June 1999 statement a doctor stated that the applicant had a clinical history compatible with Friedreich’s ataxia, and testing clearly confirmed that he had that disease.  The doctor stated that he should have received a medical discharge from the military.  He did state that he felt that the applicant would not have been diagnosed early on when he was in his mid to late teens especially if he was seen by a primary physician.  He was not seen by a specialist, i.e., a neurologist, until he was in the military.  At that point, the diagnosis of Friedreich’s ataxia was made, but certainly the symptoms could not necessarily be considered preexisting.  He went on to say that he did not think the applicant was seen by any physician that would have been capable of making such a diagnosis prior to his induction into the military.  He stated that he also truly believed that he probably did not have symptoms necessarily that would have been that overt that a generalist would have picked up.

Friedreich’s ataxia is an autosomal recessive disease, usually beginning in childhood or youth, with sclerosis of the dorsal and lateral columns of the spinal cord.  It is attended by ataxia (failure of muscular coordination, irregularity of muscular action), speech impairment, lateral curvature of the spinal column, and peculiar swaying and irregular movements, with paralysis of the muscles, especially of the lower extremities.  It is also called hereditary ataxia.

Army Regulation 635-40 provides that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered military service.  

Army Regulation 635-40, then in effect, establishes policies and procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation.  Chapter 9 provides for the expeditious discharge of enlisted personnel who are unfit for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay.  Paragraph 9-3 states in pertinent part that when a medical board recommends that a member be separated because of medical unfitness which existed prior to entry into military service, the member will be offered the opportunity for expeditious separation. The medical facility commander will refer the case to the PEB (Physical Evaluation Board) liaison officer for explanation to the member, advice of his rights, and the offer of an opportunity for expeditious discharge, if the member agrees with the EPTS aspects of his disability.  

The PEB liaison officer will inform a member that section 1214, title 10, United States Code, provides that a member of the Army will not be discharged or retired for physical disability without a full and fair hearing if he demands it.  Within the Army disability evaluation system, a full and fair hearing is provided by a physical evaluation board.  Eligibility of a member to receive disability retirement or severance pay may be determined only after consideration of his case by a PEB.  If the member agrees with the findings of the medical board that his physical disqualifying condition existed prior to service and was not aggravated thereby, he may apply for expeditious discharge.  Any member of the Army therefore discharged may not be considered for any disability benefits administered by the Army. 

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.  Notwithstanding the fact that the medical board proceedings are not available, it is apparent from the applicant’s statement requesting discharge, that   competent medical authority determined that he was medically unfit for entrance on active duty due to a medical condition which was neither incurred in nor aggravated by active military service.  The applicant concurred and requested discharge without delay.  Accordingly, the applicant was discharged without disability benefits from the Army.

2.  The statements of support from individuals who knew and grew up with the applicant prior to his entrance of active duty are noted; however, those statements do not belie the fact that the applicant was medically unfit for retention, and that medical personnel determined that his condition had existed prior to his military service.  The 4 June 1999 statement from a medical doctor clearly indicates, in his opinion, that even a general physician would not have been able to recognize the symptoms of his disease.

3.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.
 
4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  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 that requirement.

6.  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

___sk___  ___tsk___  ___jhk___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999028755	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000725	
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	108.00	
2.		
3.		
4.		
5.		
6.