MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 October 2000                  
	DOCKET NUMBER:   AR2000044127

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest W. Lutz, Jr.		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Tracey L. Pinson		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:  Reconsideration of his earlier appeal to correct his records by showing that he was separated for physical disability retirement. 

APPLICANT STATES:  In effect, that the physical evaluation board (PEB) erred when it determined that his back condition had existed prior to his entry into service (EPTS).  He contends that his numerous physical examinations throughout his approximately 20 years of service show that he did not have a pre-existing condition.  He avers that the PEB decision cost him the disability retirement he had earned.  He submits numerous service and Department of Veteran Affairs (VA) documents to substantiate his case.

COUNSEL CONTENDS:  In effect, counsel concurs in the applicant's presentation and requests that all reasonable doubt be resolved in the applicant's favor.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case on 24 November 1999 (COPY ATTACHED).

The applicant’s submission is new evidence and argument that requires Board consideration.

Among the documents that the applicant submits is a page apparently from a VA  hearing that he has labeled “evidence #15”.  It mentions an injury in the line of duty in 1983.  In a handwritten note the applicant has written “This is the injury that was and still [is] classified a ‘pre-existing condition’ and was disassociated from my second injury on July 19, 1988.”  On another document, “evidence # 18,” the VA noted that there was an apparent conflict or discrepancy between the findings of the applicant’s medical evaluation board and the PEB.  However, the VA continued and explained that apparent discrepancy on the same page.

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.  By his own admission, the applicant hurt his back in the line of duty in 1983.  When he entered active duty training in 1988 that condition was properly considered to be EPTS.  

2.  However, when his back condition was determined to be unfitting, the overall rating was not decreased due to the pre-existing condition.  His condition was considered aggravated by service in 1988 and appropriately rated at 10 percent.

3.  The apparent discrepancy between the MEB and the PEB existed because the PEB knew about the 1983 injury whereas the MEB apparently did not.  

4.  The applicant was not denied physical disability retirement because his condition was considered to have been pre-existing.  He was denied disability retirement because his condition was rated at less than 30 percent disabling.      
 
5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__EWL__  ___CJP _  ___TLP__  DENY APPLICATION

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

INDEX

CASE ID	AR2000044127	
SUFFIX		
RECON		
DATE BOARDED	20001019	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.