MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           10 February 2000                  
	DOCKET NUMBER:   AR1999028763

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. James P. Steuve		Member	
	Mr. Kenneth L. Wright		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:  In effect, the applicant requests that he be reinstated to active duty as a second lieutenant, or retired with a 40 percent disability rating.

APPLICANT STATES:  In effect, the applicant states he was denied acceptance as an officer candidate because of diabetes, but allowed to remain on active duty, and was sent to Somalia despite his disability and profile, the same disability and profile which caused him to be denied acceptance as an officer candidate.  His diabetic condition was not part of his disability rating.  He was sent into combat with a P-3 profile, even though his profile restricted him to nonisolated areas.

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

The applicant entered the Army on 26 June 1976 and was released from active duty on 20 June 1980 in pay grade E-5.  He had 4 years of service.

The applicant enlisted in the Army Reserve delayed entry program (DEP) on        8 January 1980.  He was discharged from that program upon his enlistment in the Regular Army for 4 years on 2 April 1990.  His enlistment record shows that a medical waiver was granted on 28 December 1989 in order for him to enlist.  The reason for that waiver is not specified; however, an 11 July 1987 report of medical examination indicates that he had pes planus, defective vision, and a hearing loss, with a physical profile serial of 1 1 1 3 2 1.

Letters of recommendation in August 1998, and July and October of 1990, indicate that the applicant had applied for officer candidate school.  There is no documentation concerning his request or any action taken on a request.

A 28 February 1991 physical profile report shows that the applicant had diabetes mellitus, and that he had to be assigned to nonisolated areas and had to have immediate access to caloric intake (MRE’s or other operational rations).  His physical profile serial was P3 1 1 1 1 1.

On 18 March 1991 a medical evaluation board (MEB) diagnosed the applicant’s condition as adult onset diabetes mellitus, non-insulin requiring; and mild hypersholesterolomia.  The board recommended that the applicant be referred to a physical evaluation board (PEB), and recommended that he be retained on active duty.  The applicant concurred and stated that he did desire to continue on active duty, and he applied to the Total Army Personnel Command for continuance on active duty.  On 10 April 1991 a PEB determined that the applicant was physically fit for duty and recommended that he be returned to duty as fit.  The applicant concurred.  The Total Army Personnel Command approved the findings on 20 April 1991 and stated that the applicant was found physically fit to perform the duties of his office, grade, rank and MOS in accordance with his physical profile and assignment limitations.
The applicant was promoted to Sergeant on 1 December 1992.  He reenlisted in the Army for 4 years on 19 August 1993.

The applicant’s NCO evaluation report ending in August 1993 indicated that he was fully capable for promotion and service in positions of greater responsibility.  His rater stated that he actively participated in the physical training program.

Statements by two NCOs indicate that the applicant was injured on                    29 October 1993 on sword base Somalia, as a result of an explosion that knocked the applicant to the floor, apparently injuring his back.  He was evacuated to the hospital for treatment.  Medical records subsequent to the incident indicate that he was seen on several occasions because of back and neck pain.  A statement of medical examination and duty status dated                21 September 1995, indicates that the applicant was hurt as a result of an explosion on 29 October 1993.  On 17 October 1995 the applicant’s commanding officer determined his injury to have been in line of duty.  The reviewing authority determined his injury to have been in line of duty.

The applicant’s NCO evaluation report ending in February 1994 during his service in Somalia again showed that he was fully capable (as above), and that he was successful in meeting the Army physical fitness standards.

A 9 August 1994 service school academic evaluation report from Aberdeen Proving Ground in Maryland indicated that he was denied enrollment in the basic NCO course because of his physical profile.

A NCO evaluation report ending in February 1995 indicated that he was fully capable for promotion and service in positions of greater responsibility and that he met the Army physical fitness standards.  He passed the physical fitness test in April 1994.  A report ending in February 1996 indicated that the applicant was among the best for promotion and service in positions of greater responsibility, that he met the Army physical fitness standards, and that his profile did not hinder performance of his duty.  A report ending in February 1997 echoed the aforementioned comments in the 1996 report.  The report ending in August 1998 indicated that his profile did not hinder his duty performance. 

A 19 December 1996 letter of intent for medical board processing indicates that the applicant did not meet the retention standards and would be processed by a medical board to determine fitness for further military service.  His disqualifying diagnosis was chronic ulnar neuropathy (forearm nervous disease) and chronic mechanical back pain.

On 21 July 1997 the applicant was retained on active duty beyond his separation date (ETS) at his request pending the results of physical disability evaluation.
 
The applicant was discharged from the Army at Fort Benning, Georgia on          28 October 1998 under the provisions of Army Regulation 635-40,            paragraph 4-24b(3),  because of physical disability.  He had a total of 11 years,   6 months, and 27 days of active service.  He received a 20 percent disability rating and was awarded $41,551.20 in disability severance pay.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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.
 
Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

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.  The applicant may have been denied acceptance as an officer candidate because of his diabetic condition as he contends; nevertheless, there is no evidence nor has the applicant provided any, that this is so.  Nor does it matter.  The applicant did not attend an officer candidate school.  He was not commissioned as an officer, and he cannot be reinstated to duty as an officer, or in any status, officer or otherwise, because of his physical disability.

2.  The applicant was found fit for duty in 1991 by a PEB in spite of his diabetic condition.  The applicant concurred in this finding, and he himself stated that he wanted to continue on active duty.  He was promoted to Sergeant over a year later, and in 1993 reenlisted for four years, clearly indicating that his diabetic condition did not hinder his duty performance.  He was discharged in 1998 because of physical disability, apparently because of a nervous condition of his forearm and because of back pain.  

3.  The applicant’s PEB evaluation which resulted in his discharge in 1998 is not available.  Absent information to the contrary, however, this Board presumes administrative regularity in the processing of the applicant's discharge and the award of a 20 percent disability rating.  The applicant has not provided any information or evidence to warrant physical disability retirement with a 40 percent disability rating.
 
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 the aforementioned 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

___jps___  ___klw__  ___vbc___ DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028763	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000210	
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.	110.00	
3.		
4.		
5.		
6.