PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  3 October 2000
	DOCKET NUMBER:  AR2000043237

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Raymond J. Wagner		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his records be corrected to show he was separated and placed on the retired list effective one year later than it actually occurred.

3.  The applicant states that he put off his health to try and get promoted to master sergeant, but had an operation on his back the last day of active duty.  He contends he should have been retained until he had received medical attention for his back.

4.  The applicant’s military records show that he enlisted in the Army on 20 June 1977.

5.  Commencing in November 1993 and continuing throughout the remainder of his military career, the applicant complained of and received treatment for low back pain (LBP).

6.  On 7 April 1999, the applicant was cleared for retention or separation by a physical examination.  His physical profile was 111111A.

7.  On 7 June 1999, Travel Order Number V6056, 75th FA Brigade, Fort Sill, Oklahoma announced the temporary duty (TDY) of the applicant to Fort Sam Houston Medical Center, Houston, Texas for a medical appointment.

8.  On 29 June 1999, Travel Order Number V60667, 75th FA Brigade announced his TDY to Fort Sam Houston for another medical appointment.

9.  On 30 June 1999, records indicate he was admitted to Wilford Hall Medical Center (USAF), Houston, Texas, on 30 June and released to home on 1 July 1999.  During that time, a right laminectomy was performed for a right L5-S1, impingement.

10.  On 30 June 1999, he was honorably separated under Army Regulation 635-200, chapter 12, for sufficient service for retirement.  His separation document indicates he had 22 years and 11 days of creditable service.

11.  On 20 February 2000, a Department of Veterans Affairs (VA) Rating Decision awarded the applicant a service-connected disability rating of            100 percent for degenerative disc disease, lumbosacral spine, with laminectomy for the period 1 July to 31 August 1999.  This was based on the surgery and convalescent period.  Effective 1 September 1999, the 100 percent rating was reduced to 10 percent.  He was granted a rating of 10 percent for the large colon resecton, status post laparotomy.  Further, he was granted 0 percent ratings for chondromalacia, right knee and for chondromalacia, left knee.

12.  On 7 August 2000, the Medical Advisor to the Review Boards Agency opined that the applicant should have been extended on active duty until completion of maximum hospital benefits or processing through the disability system was complete.

13.  On 9 August 2000, the medical advisor’s opinion was furnished to the applicant for his acknowledgment/rebuttal.

14.  On 17 August 2000, the applicant concurred with the opinion.

15.  Army Regulation 635-40, paragraph 3-7, provides, in pertinent part, that a soldier whose normal scheduled date of non-disability retirement occurs during the course of hospitalization may be retained in the service until he has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.

CONCLUSIONS:

1.  The evidence of record shows that the Department of the Army did not comply with the provisions of Army Regulation 635-40, since the applicant was separated and placed on the retired list, while hospitalized and undergoing surgery.  His records should be corrected, accordingly.

2.  The VA records document the applicant completed his convalescent period on 31 August 1999.

3.  Based on the completion of his convalescent period, his separation date should be established as 31 August 1999.

4.  The reason for separation will remain the same.

5.  The evidence in this case does not show that the applicant should have been referred to the disability system.  He received an immediate review by the VA and was given a 10 percent disability rating.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by showing that the separation of the individual concerned from active duty on 30 June 1999 and placement on the retired list on 1 July 1999 is void and of no force or effect;

b.  by showing he was honorably separated from active duty on 31 August 1999 and placed on the retired list effective 1 September 1999 with entitlement to retired pay of the highest grade satisfactorily held within the meaning of Title 10, United States Code, section 1372; and,

c.  by showing he is due all pay and allowances to which he is entitled as a result of the additional active duty.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__js___  ___rd____  __rw______ GRANT AS STATED IN RECOMMENDATION

________  ________  ________ GRANT FORMAL HEARING

________  ________  ________ DENY APPLICATION

		__John N. Slone___
		        CHAIRPERSON

INDEX

CASE ID	AR2000043237	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001003	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.136	Retirement	
2.		
3.		
4.		
5.		
6.