MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 August 2000                   
	DOCKET NUMBER:   AR2000041862

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. Roger Able		Member	
	Mr. Charles Gainor		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 be changed to a medical discharge.

APPLICANT STATES:  That he had surgery on his back in November 1987.  He was scheduled for a follow-up examination but Fort Hood, TX ignored this reexamination and initiated his separation before his medical condition was resolved in order to meet authorized strength reductions.  He was one of their “quotas.”  He was unaware of future consequences and had no counseling and so accepted the process.  He frequently finds himself incapacitated and in great pain and can now mainly work only the odd, light jobs where no heavy lifting or bending is involved.  These jobs do not usually meet his financial obligations.  He provides a 3-page 1994 VA medical examination as evidence.

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

He enlisted in the Regular Army on 7 March 1985 for 3 years.  He completed basic training and advanced individual training and was awarded military occupational specialty 16P (Chaparral Crewmember).  

The applicant’s service medical records are not available.

On 2 March 1988, the applicant was released from active duty under the provisions of Army Regulation 635-200, paragraph 16-8 for reduction in authorized strength – fiscal year 1988 early transition program.  There is no evidence of record to show whether this was a voluntary or an involuntary separation.  He was assigned to the 656th Transportation Company, U. S. Army Reserve (USAR).  The applicant apparently never reported to this unit and on     3 October 1998 he was transferred to the USAR Control Group (Reinforcement).

The applicant’s Personnel Qualification Record, DA Form 2A (USAR), dated       19 March 1988 shows his physical profile category and PULHES as A/111111 (no demonstrable anatomical or physiological impairment within the standards established in table 7-1, Army Regulation 40-501).

One of the VA documents provided by the applicant notes “I have not been provided any history if patient had any prior surgery.”

Army Regulation 635-200 governs the separation of enlisted soldiers.  Paragraph 6-18 provided that soldiers could be separated prior to their expiration of term of service when authorization limitations, strength restrictions or budgetary constraints required the size of the enlisted force to be reduced.  The Secretary of the Army would authorize voluntary or involuntary early separation under the authority of Title 10, U. S. Code, sections 1169 or 1171.  The Commander, U. S. Total Army Personnel Command would implement the program by issuing separation instructions pertaining to a specific class or category of soldiers.
Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The regulation 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 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. 

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.  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 this requirement.

2.  There is no evidence of record and the applicant provides no evidence to show that he was ever referred to the disability system.  Since the applicant was accepted into a USAR unit upon his separation, even though it appears he never reported to that unit, the Board presumes that he was medically cleared for separation.  His DA Form 2A (USAR) dated 19 March 1988 shows he had no physical profile limitations.  In the absence of evidence to the contrary, it appears that his military service was not interrupted by a physical disability and it is presumed that he was fit for duty at the time of his 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

__jdm___  __ra____  __cg____  DENY APPLICATION

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

INDEX

CASE ID	AR2000041862	
SUFFIX		
RECON		
DATE BOARDED	20000829	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.