MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  22 February 2001
	DOCKET NUMBER:  AR2000048312

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Ted S. Kanamine		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, that his records be corrected to show he has a service-connected disability.

APPLICANT STATES: That the Medical Board (MEBD) proceedings, dated      10 February 1959 are in error and should show that his disability resulted from his active duty.  He provides letters of support from his family and friends.

COUNSEL CONTENDS: That this submission, in conjunction with the official Army records, amply advance the applicant’s contentions and substantially reflect the probative facts needed for equitable review.  The applicant provided statements from family and friends who attest to the fact that he did not suffer from any health problems prior to his period of military service. 

EVIDENCE OF RECORD: The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from alternate sources.

On 26 June 1958, the applicant enlisted in the Army.  He completed his required training and was awarded military occupational specialty 520 (Utilities Worker).  He was advanced to pay grade E-2 effective 26 October 1958.

On 20 January 1959, a Narrative Summary (NARSUM) indicates a diagnoses of Bronchitis, chronic, bilateral with a negative line of duty (LD, No) – existed prior to service (EPTS) and Pneumonia, n.e.c. (sic), organism unknown, cured with a LD, Yes.  The NARSUM recommended he be discharged from the service.

On 10 February 1959, MEBD proceedings confirmed the NARSUM findings and recommendation and recommended he be separated from the service.  The applicant made application for discharge by reason of physical disability (not entitled to receive disability severance pay).

On 12 February 1959, the MEBD recommendation was approved.

On 5 March 1959, the applicant was honorably separated, in pay grade E-2, under Army Regulation 635-40A.

On 1 June 1959, a Veterans Administration Rating Sheet awarded the applicant service-connection for chronic bronchitis, rated at 10 percent disabling effective  6 March 1959.

Army Regulation 635-40A, in effect at the time, provides, in pertinent part, for separation of enlisted soldiers for non-service aggravated EPTS conditions when the soldier requests waiver of a Physical Evaluation Board evaluation.  This chapter is applicable to enlisted soldiers on active duty for more than 30 days.  The case must meet the following conditions: (1) the soldier is eligible for referral into the disability system; (2) the soldier does not meet medical retention standards as determined by the MEBD; (3) the disqualifying defect or condition existed prior to entry on current period of duty and has not been aggravated by such duty; (4) the soldier is mentally competent; (5) knowledge of information about his or her medical conditions would not be harmful to the soldier’s well being; (6) further hospitalization or institutional care is not required; (7) after being advised of the right to a full and fair hearing, the soldier still desires to waive PEB action; and (8) the soldier has been advised that a PEB evaluation is required for receipt of Army disability benefits, but waiver of the PEB will not prevent applying for VA benefits.  Unless otherwise indicated, the soldier will be separated with an honorable or general discharge.  If the soldier is in entry level status at the time of processing, service will be uncharacterized.

An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout their lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

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 the absence of evidence to the contrary, a presumption of regularity applies that the records of the individual concerned are correct.

2.  The medical evidence of record shows the applicant had chronic bronchitis, bilaterally which had existed prior to his service.

3.  The evidence also shows the “indiv[idual] made appl[ication] for disch[arge] by r[ea]s[o]n of phys[icial] disab[ility]”.

4.  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.

5.  The evidence in this case does not support his contention that there was an error or injustice in his separation from active duty.

6.  It is noted the VA can evaluate a veteran throughout his lifetime, under its own regulations, adjusting the percentage of disability based upon that agency’s examinations and findings.

7.  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

__ro__  __sk______  __tk_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000048312	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010222	
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         1.108	PD Sep	
2.		
3.		
4.		
5.		
6.