MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             7 November 2000 
	DOCKET NUMBER:    AR2000039927

	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. George D. Paxson		Chairperson	
	Ms. Paula Mokulis		Member	
	Mr. Melvin H. Meyer		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 separation with severance pay be corrected to a retirement with disability and that he be promoted to pay grade E-5 and receive a $20,000 bonus for reenlisting as an 11B, infantryman.

APPLICANT STATES: That the Physical Evaluation Board (PEB) did not consider all of his line of duty ailments.  The PEB did not consider an injury to his left shoulder and left ankle.  He reenlisted for military occupational skill (MOS) 68Q, avionic flight systems repairer, but due to misinformation he never attended the school.  Further, since it was not his fault that he did not attend the 68Q school, he should have reenlisted as an 11B, which would have earned him a $20,000 bonus. 

In support of his application the applicant submitted a self-authored statement.  He recounts that he was involved in a helicopter crash at the National Training Center in which he suffered injuries to his left knee, lower back and head.  The entire crew was medically evacuated for emergency treatment.  He alleges that he was compelled by his commander to sign a “no-fault” statement relative to the crash and that he was misled again by his commander and first sergeant into believing that if he did not accept the PEB findings he would be dismissed from the Army with a dishonorable discharge.  The applicant recalls that after reenlisting for the 68Q MOS he accepted an offer to learn the MOS through on the job training.  He still inquired about attending school, but was told “don’t worry about it”.  After missing a class date he was then called before a board of sergeants major and told he should have done more to rectify the situation and that he was being reassigned as an 11B.

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

He entered active duty on 1 March 1987 and completed training as an 11B; he achieved pay grade E-4 on 1 July 1988, and reenlisted on 10 March 1991 for MOS 68Q.

On 29 May 1990 the applicant was treated for a left ankle sprain that occurred while he was playing basketball.  The accident was found not due to the applicant’s negligence and was in line of duty.

On 10 March 1991 the applicant reenlisted for a period of 4 years, and attendance at the 68Q MOS school.

On 28 May 1992 the applicant acknowledged that he was to appear before a MOS Medical Retention Board (MMRB).  He indicated that his MOS was 11B and requested to be referred to the Army’s Physical Disability System.

On 3 June 1992 a MMRB was conducted.  The MMRB found that the applicant’s physical impairment (traumatic arthritis left ankle) prevented him from performing as an 11B.  The board recommended the applicant for referral to a Medical Evaluation Board (MEB).  

On 2 October 1992, the MEB found that the applicant’s physical impairment (traumatic arthritis left ankle) prevented him from performing as an 11B or passing the Army Physical Fitness Test.  The MEB concluded the applicant’s condition was not expected to improve with time and recommended the applicant for referral to a PEB for further adjudication.  The applicant concurred with the board’s findings and recommendation.

On 3 November 1992, the applicant was treated for an injury to his right knee that occurred while he was warming up for wrestling practice that was further aggravated when the applicant was involved in an automobile accident on the way to the hospital.  A completed line of duty determination was not found in the record. 

On 18 March 1993 an MEB addendum was prepared.  The addendum acknowledged that subsequent to the 2 October 1992 MEB the applicant had suffered an injury to this right knee.

On 9 April 1993 a PEB was convened and determined that the applicant was physically unfit due to moderate knee instability and post traumatic arthritis to the left ankle.  The PEB determined that his condition was 10 percent disabling under the Veterans Administration Schedule for Rating Disabilities (VASRD) and recommended that he be discharged with severance pay.  The applicant concurred with those findings and recommendation and waived a formal hearing of his case.

Accordingly, on 14 June 1993 the applicant, then a specialist, was honorably discharged due to physical disability, with $15,134.40 in severance pay.

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.

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 with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

Army Regulation 600-8-19, Enlisted Promotion and Reductions, provides, in pertinent part, that soldiers who are ineligible for reenlistment, fail to reenlist or extend their current enlistment to meet service remaining obligation for promotion, or who have been determined by a PEB to no longer be qualified for continued active service, are considered to be in a non-promotable status.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant’s disability was properly rated in accordance with the VASRD.  His separation with severance pay was in compliance with law and regulation.

2.  The applicant’s MMRB’s, MEB and PEB all show that he was medically disqualified and physically unfit to perform his duties due solely to physical impairment of the right knee and left ankle.  There is no evidence that the applicant presented to any of the boards information that he suffered additional injuries that were not noted.  The addition of the MEB addendum is proof that as medical conditions became known they were considered by the necessary medical board.  The applicant by his signature throughout the evaluation process acknowledged that he understood and agreed with the boards findings and recommendations.  There is no indication that the applicant had injuries that were medically disqualifying or physically unfitting that were not considered.

3.  The applicant was properly reenlisted with the option to attend the 68Q school; however, subsequent to that reenlistment he entered the physical disability system becoming ineligible to attend the 68Q school.  The applicant’s position that he should be awarded the 11B reenlistment bonus because he did not attend the 68Q school is not supported by any regulatory guidance.

4.  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.

5.  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

___gdp _  ____pm  _  ____mhm   DENY APPLICATION

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

INDEX

CASE ID	AR2000039927	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001107	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	 	
REVIEW AUTHORITY		
ISSUES         1.	108.05	
2.		
3.		
4.		
5.		
6.