MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           16 November 2000                   
	DOCKET NUMBER:   AR2000042184

	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. Walter T. Morrison 		Chairperson	
	Mr. James E. Anderholm 		Member	
	Ms. Martha E. Schuler 		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, physical disability retirement.

APPLICANT STATES:  In effect, that he was injured while on duty in 1987.  He should have gone before a Medical Evaluation Board (MEB).  However, he was transferred to the Retired Reserve in 1997 without the benefit of appearing before that board.  He states that he had advised members of his chain of command of his medical complications and that, in fact, orders were published for him to go to the hospital at Fort Gordon, Georgia.

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

The applicant was a Reserve soldier who was also a technician at an Equipment Concentration Site (ESC) at Fort Gillem, Georgia.  The applicant served on active duty from October 1967 to July 1969, served in the Army National Guard for over two years, and was a member of the Army Reserve from 1975 until his transfer to the Retired Reserve in 1997.

A 5 June 1987 Statement of Medical Examination and Duty Status                   (DA Form 2173) shows that the applicant injured his lower back and tail bone on 3 June 1987 at Fort Stewart, Georgia, when the jeep in which he was riding hit a bump in the road causing his injuries.  His injuries were determined to be in line of duty.  At the time of his injury he was serving as an assistant operations sergeant with the Second Army NCO Academy at Fort Stewart.  His military occupational specialty (MOS) was 63Z5H, track vehicle repairer, and his duty MOS was 11B5H, infantryman.  He was a PLDC (Primary Leadership Development Course) instructor with the 3283d School at Chamblee, Georgia.   

The applicant’s medical records show that he was treated for lower back pain on four occasions at Fort McPherson, Georgia and at Fort Gordon, Georgia in 1987.

The applicant completed the Second Army RC-NCOES (Reserve Component NCO Educational School) ITC course at Tampa, Florida from 2 March 1988 to     6 March 1988, certifying that he could perform as a cadre trainer for PLDC-RC (Reserve Component), BNCOC (Basic NCO Course), ANCOC (Advanced NCO Course), and FSC (First Sergeant Course).

He was seen by the neurosurgery clinic at Fort McPherson on 2 December 1988. On 3 March 1989 he was admitted to the Eisenhower Army Medical Center at Fort Gordon.  He underwent a lumbar myelogram and CT scan with contrast on   6 March 1989 and an electromyogram with nerve conduction velocities on           7 March.  His condition was diagnosed as L5-S1 bulging disc, without radiculopathy.  Upon his discharge from the hospital on 8 March 1989, the applicant was ambulating independently, unchanged from his admission.  He was given a profile, P3, with running over ¾ of a mile as tolerated, and no lifting over 50 pounds.  He was to return to the neurosurgery clinic in three months and to continue back exercises as tolerated.    

On 11 July 1989 the applicant received a physical profile serial of 1 1 2 1 1 1 because of his L5/S1 bulging disc.  That profile indicated that he could not lift materials greater than 60 pounds, and restricted him from other physical activities.  On 5 September 1989 he underwent physical therapy for his low back pain.  The applicant was seen and treated for his low back pain at Fort McPherson on 21 February 1990.  He underwent physical therapy for that pain.  

The applicant completed a Reserve logistics management course conducted at Fort McCoy, Wisconsin from 2-12 April 1990.

He completed a battle staff course conducted at the Second Army NCO Academy at Fort Benning, Georgia from 8-22 September 1990. 

The applicant reenlisted in the Army Reserve for six years on 3 October 1991. 

He completed a battle focused instructor training course at the Second Army NCO Academy at Fort Benning from 1-6 March 1992.

The applicant’s senior performance rating as a heavy mobile equipment repairer leader in his civilian job for the period 29 June 1991 to 18 June 1992 shows that his performance was exceptional, that he exceeded all job requirements, which consisted of planning and organizing, trouble shooting, inspection, repair and maintenance services, and technical assistance.

The applicant’s NCO Evaluation Report (NCOER) for the period September 1991 through July 1992 shows that he was rated among the best NCOs by his rater and his senior rater.  On 1 September 1992 the applicant was transferred to the 319th Transportation Company in Augusta, Georgia as the First Sergeant in   MOS 88Z5M.

He received a follow up on his back injury on 31 March 1993.  A NCOER ending the 12 month period in August 1993 shows that the applicant was not cleared to take the Army Physical Fitness Test (APFT), but his inability to perform the APFT did not deter or hamper his ability to perform his duties.  He was rated among the best by his rater and senior rater.  

He was treated for his back again on 26 March 1994.  The medical record on that date showed that the applicant stated that he had numbness from his lower thigh to mid calf, which bothered him the most with lots of walking or driving.  It showed that he used Motrin for pain and that he went to physical therapy for several years.  

A 6 May 1994 radiologic examination report of the applicant’s lumbar spine showed five lumbar vertebral bodies present and that the intervertebral discs were well preserved.  There was no evidence of subluxation or retrolisthesis. There was no evidence of old fracture.  The sacroiliac joints appeared normal.  
The applicant was seen by orthopedics on 6 May 1994 and his condition was diagnosed central disc bulge L5-S1.  The applicant was treated for right knee pain and back pain.

In a 10 May 1994 memorandum the applicant’s maintenance foreman at his civilian job informed the applicant’s commanding officer that the applicant had been employed at the ESC since August 1983, that he was a heavy equipment repairer work leader, whose duties included assisting other mechanics with work orders and technical assistance in repairing equipment.  He was qualified and had been tasked to assist units with driver’s training.  He was a qualified and certified cadre training and had been tasked to provide hands-on-training on unit maintenance for equipment operation at home station and at ESC.

A NCOER for the 12-month period ending in August 1994 again shows that he was not cleared to take the APFT, but his inability to do so did not deter or hamper his performance.  He was rated among the best by his rater and senior rater. 

He was treated for back pain on 9 December 1994, and for right knee pain on    20 December 1994.  

A 7 April 1995 memorandum from a supervisor at the ESC where the applicant worked indicated that the applicant was a fully qualified truck driver and had been driving tractor trailers for the ESC since 1983. 

A NCOER for the 12 month period ending in August 1995 shows that he passed the APFT, and that he was again rated among the best NCOs. 

A November 1995 medical record shows that he was seen by orthopedics for his back pain.  That record shows that he had been offered surgery, but declined.  

Orders published on 13 February 1996 showed that the applicant was placed on TDY to the Eisenhower Medical Facility for a doctor’s appointment on                23 November 1995, and again on 13 December 1995.  On 28 May 1996 orders were published placing the applicant on TDY to Fort Gordon for a doctor’s appointment on 30 May 1996.  

The applicant was seen by doctors on 26 April 1996, again on 5 June 1996, and on 10 January 1997.

An NCOER for the 12 month period ending in August 1996 shows that the applicant passed the APFT, and that his rater and senior rater again indicated that he was among the best NCOs.

A chronological statement of retirement points, dated 16 October 1996, shows that the applicant had 29 years of total service, with over 26 years of qualifying service for retired pay at age 60.  That statement showed that the applicant had served, in addition to inactive duty training, on active duty each year continuously from 1971 through 1996, with a low of 11 days of active duty in the retirement year ending (RYE) in 1985 to a high of 71 days in the RYE in 1992.  

On 26 June 1997 the applicant was transferred to the Retired Reserve because of mandatory removal date (MRD) for his maximum years of service.

A 22 August 1997 medical report indicates that the applicant wanted to retire, but could not until a MEB was completed.  That report indicated that an MEB would be set up.  

In a 28 December 1998 letter a member of congress (MC) was informed that the applicant had not advised his chain of command of any continuing complications from his May 1987 injury; consequently, he was reassigned to the Retired Reserve for reaching his maximum years of service.  That letter indicated that the orthopedic surgeon at the Eisenhower Medical Center dictated a medical board on the applicant on 14 November 1997, but that board could not meet because of the applicant’s transfer to the Retired Reserve.  The MC was advised that the applicant could apply to this Board for relief.  The MC was also informed that the applicant was entitled to continuing medical care for his injury and that he should contact the local VA center to receive follow on treatment.

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.

Army Regulation 635-40, paragraph 3-2b states in pertinent part 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.  

That paragraph goes on to say 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 140-10, chapter 7, provides for removal of Reserve soldiers from an active status, and states in effect, that soldiers removed from an active status will be discharged or transferred to the Retired Reserve.  Troop program unit (TPU) enlisted soldiers in the rank of 1SG/MSG (First Sergeant/Master Sergeant) will be removed when they complete 29 years of service.  However, soldiers who do not request transfer to the Retired Reserve or discharge will be assigned to the IRR (Individual Ready Reserve).  That chapter goes on to say that enlisted soldiers not sooner removed for another reason will be removed when they reach age 60.

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’s military history, since his injury in 1987, shows that he was seen for his lower back pain on various occasions during the ten-year period prior to his transfer to the Retired Reserve.  His history also shows that he attended and completed four training courses during that period, that he attended inactive duty training (IDT) with his Reserve unit and faithfully performed his annual active duty requirements during each year of that period.  He reenlisted for six year in 1991 and performed duties as a First Sergeant in a transportation company beginning in 1992.  The four NCO evaluation reports available indicate that his level of performance was outstanding and that his profile did not hinder his ability to perform his duties.  The reports for the two years prior to his retirement, in fact, show that he took and passed the APFT. 

2.  Furthermore, the evidence indicates that the applicant had no problems in performing in his civilian job, that of a heavy equipment repairer work leader at an ESC.    

3.  The applicant’s transfer to the Retired Reserve, absent information to the contrary, was proper.  A medical report two months after his transfer does not negate that action.  Although the applicant had back problems during the             10 years prior to his transfer to the Retired Reserve, those problems apparently had no effect on his performance of duty.  His continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his transfer to the Retired Reserve.

4.  He has submitted neither probative evidence nor a convincing argument in support of his request for physical disability retirement.   

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

__jea____  __mes__  __wtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042184	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001116	
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.