MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           31 October 2000                  
	DOCKET NUMBER:   AR2000046740

	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. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Allen L. Raub		Member	
	Ms. Brenda F. Hirschi		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.  He also requests that he be granted a formal hearing.

APPLICANT STATES:  In effect, that a January 1967 radiographic report proves that he never had gout.  He states that since he never had kidney stones he never had crystals in his blood and therefore he never had gout.  He demands that the diagnosis of gout be removed from his medical records.  He contends that his case has been open for over 10 years and that the radiology report is substantial new evidence.  He also contends that a 16 January 1968 T-3 physical profile for the lower extremities shows that he is entitled to physical disability retirement.  He cites a photograph of himself with plaster casts on both legs and insists that this could not have been treatment for gout.

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 9 December 1992 (COPY ATTACHED).

The applicant’s contentions are new evidence and argument that require Board consideration. 

A Radiographic Report, Standard Form 519, dated 19 January 1967, indicates that the applicant had a normal bilateral excretory urogram examination and had no stone, obstruction or filling defect. 

The applicant entered active duty on 13 December 1967.

An undated medical consultation record shows that the referring orthopedist provided a provisional diagnosis of gout.  The consulting internist recorded a history of “joint pain 2 years ago” followed by “a prolonged period of bed rest.”  The applicant also reported a family history of arthritis in both parents.  His present problem had developed following a period of activity in basic training.

The MedicineNet.com Dictionary states that gout is joint inflammation caused by uric acid crystal deposits in the joint space.  An attack is usually extremely painful. The uric acid crystals are deposited in the joint fluid (synovial fluid) and joint lining (synovial lining).  Intense joint inflammation occurs as white blood cells engulf the uric acid crystals, causing pain, heat, and redness of the joint tissues.. The term "gout" commonly is used to refer to these painful arthritis attacks but gouty arthritis is only one manifestation of gout. 

Title 38, United States Code, sections 310 and 331, permits the Department of Veterans Affairs (VA) to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

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.  There is no record that the applicant sustained any injury.  He was separated because a pre-existing condition re-occurred under the rigors of military training.  Whether or not this condition was properly termed gout is immaterial. 

2.  A physical profile does not, in and of itself, entitle the individual to disability separation benefits.

3.  It is the policy of this Board to neither create nor alter service medical records.  Such records are merely the observations and opinions of medical professionals at the time they were recorded.

4.  The VA is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency.

5.  Prior to reaching a determination that it was not in the interest of justice to excuse the failure to timely file, the Board looks at an entire file.  The Board considers the statute of limitations only after all other aspects have been considered and it has been concluded that there is no basis to recommend a correction of the records.  When the Board determines that an error or injustice exists, it routinely recommends relief in spite of a failure to submit the application within the 3-year time limit.  Although the decisional document may not state that the Board considered the merits of the case, the display of the pertinent details of applicant’s service record, the circumstances of the case and the regulations governing the issue tends to show that it did.  The Board does not deny applications simply because they were not submitted within 3 years.

6.  Formal hearings are granted only when the Board determines that a case is so complex, or the records so incomplete that only sworn testimony can provide the necessary information.

7.  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.

8.  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

__EJA__   ___ALR__  __BFH __  DENY APPLICATION

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

INDEX

CASE ID	AR2000046740	
SUFFIX		
RECON		
DATE BOARDED	20001031	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.