MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

          BOARD DATE:             28 September 2000                 
	DOCKET NUMBER:    AR2000036683

	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. Walter Avery, Jr. 
		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Donald P. Hupman		Member	
	Mr. Ernest M. Willcher		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, that his medical records be reviewed by a medical evaluation board (MEBD)

APPLICANT STATES:  That he was hurt in the line of duty while serving in Desert Storm.  He believes that because he was reservist on active duty he was discharged from active duty without the benefit of a MEBD.

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

The applicant was a sergeant assigned to a US Army Reserve unit, as a cook, when he was ordered to active duty in support of Operation Desert Storm. 

A DA Form 2173, Statement of Medical Examination and Duty Status, reflects that the applicant was admitted to the hospital in February 1991 with complaints of chest pain and hypertension.

On 28 August 1982 a Headquarters, 7th Infantry Division memorandum was prepared that indicates that the applicant’s report of line of duty investigation was incurred in the line of duty.

NCO-ER for the period February 1994 through September 1994 indicates that the applicant passed the Army physical fitness test and met height and weight standards.

The applicant’s medical records were not available.

Army Regulation 635-40, paragraph 3-2b, states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; after, 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.

It further provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

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.  Despite the applicant’s contention, there is no requirement for a MEBD for an injury incurred in the line of duty.  The fact that an injury was determined to have occurred in the line of duty is not, in and of itself, a basis for a determination that the injury is “unfitting”, but merely a conclusion that the injury occurred while the individual was in a duty status and was not the result of misconduct. 

2.  Notwithstanding the possible presence of a medical condition, there is no evidence of record that the applicant suffered from any illness or injury at the time of his separation from active duty that was of such severity that he was rendered unable to reasonably perform the duties of his office, grade, rank or rating.  Accordingly, by law and regulation, there is no basis for physical disability retirement or separation.

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

__rvo ___  ___dph__  ___emw _  DENY APPLICATION

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

INDEX

CASE ID	AR2000036683	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000928	
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.	122.01	
2.		
3.		
4.		
5.		
6.