MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            17 April 2001     
	DOCKET NUMBER:   AR2000049411

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Melvin H. Meyer		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, “compensation” for the pain and injury he suffered in 1993 while on active duty.

APPLICANT STATES:  He sustained an injury to his back in May 1993 and in spite of going on sick call “no x-rays were taken” and he was simply given “Motrin and a physical profile.”  He states that because he was not given a complete examination his “injury got worse with time and was not detected until Oct. 13, 1997.”  In support of his request he submits copies of his 1993 medical consultation forms, copies of his 1997 consultation forms and copies of his disability processing forms.

COUNSEL CONTENDS:  Counsel offers nothing beyond that submitted by the applicant.

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

He enlisted in the Army National Guard on 12 January 1993 and entered active duty on 11 March 1993 for the purpose of undergoing training.

According to medical documents provided by the applicant he was seen by medical personnel on 10 May 1993 with a complaint of right hip and waist pain resulting from “being flipped during self defense” training.  Those same medical extracts indicate that x-rays were taken on 17 May 1993 with no evidence of fracture.

On 12 June 1993 the applicant again sought medical treatment when he began experiencing pain after a three mile run.  He noted to the physician that “prior to that pain wasn’t present.”  Following his evaluation the applicant indicated that he wished to complete his active duty for training and that he “has been passing APFT’s without a problem.”

The applicant successfully completed his 16 weeks of training as a military policeman and on 9 July 1993 was released from active duty and returned to his National Guard unit.  On 8 August 1994 the applicant was promoted to pay grade E-3.

On 1 September 1995 the applicant was transferred to the U.S. Army Reserve Control Group (IRR) for the duration of his statutory service obligation.

In March 1997, at the applicant’s request, he was voluntarily transferred from the U.S. Army Reserve Control Group to a Troop Program Unit (TPU) at Fort Belvoir, Virginia.  On 8 September 1997 he was ordered to active duty for 12 days of annual training and on 10 October 1997 he returned to active duty for the purpose of attending the Finance Specialist Course at Fort Jackson, South Carolina.
A 19 November 1997 medical consultation sheet noted the applicant was seen by a physician as a result of lower back pain he had been experiencing since “on or about 28 Oct 97…while performing physical fitness training here at Fort Jackson, SC.”  The applicant was granted an APFT (Army Physical Fitness Test) waiver in November 1997 as a result of his physical profile but was allowed to complete training as a finance specialist.  Upon completion of his finance course the applicant was returned to his Reserve unit in December 1997.  The waiver document noted the applicant had successfully passed all the events of a diagnostic APFT administered on 21 October 1997.

On 10 January 1998 his Reserve unit commander advanced him to pay grade 
E-4.

The applicant was subsequently referred to a Medical Evaluation Board which concluded that the applicant’s back condition was “medically unacceptable, Grade II Spondylolisthesis, bilateral L5 spondylolysis, and chronic right L5-S1 radiculopathy” and referred him to a Physical Evaluation Board (PEB).  A formal PEB concluded the applicant was no longer fit for continued military service and on 7 June 1999 he was discharged from the U.S. Army Reserve by reason of physical disability with entitlement to severance pay.

Army Regulation 27-20, paragraph 2-39b, states that a member of the Armed Forces' claim arising incident to service is not payable under any chapter, however, a claim for property loss or damage may be payable under chapter 11 or, if not, under chapters 3 or 6 of this regulation.  Derivative claims and claims for indemnity are also excluded.

Disability severance pay is an authorized special lump-sum payment to be made to members of the armed forces separated from active military service because of minor physical disabilities that, while substantial enough to adversely affect their abilities to perform the military duties of their respective offices or grades, are not so severe as to seriously impair their civilian earnings capacities, in order to assist such personnel in the transitions back to civilian life.

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 evidence, and the applicant has not provided any, that his back condition was such in 1993 to warrant disability processing.  Contrary to the applicant’s contention the medical documents he submitted indicate that he did receive an x-ray for his back condition in May 1993.  

2.  The Board notes that the applicant continued his active duty for training in 1993, in spite of his complaints of back pain, until he successfully completed his training as a military policeman.  The Board also notes that the applicant was promoted after the 1993 injury and served successfully in the National Guard until he was transferred to the U.S. Army Control Group in 1995.

3.  The applicant returned to an active Reserve capacity in 1997 at his request, successfully passed an AFPT in October 1997 and went on to complete his active duty for training tour in spite of his back condition.  The Board notes the applicant was also promoted in 1998, following his release from active duty and return to his Reserve duties.  The fact that the applicant’s back condition ultimately progressed to the point that disability processing was necessary is not evidence that the treatment he received in 1993 was inadequate.

4.  The applicant has not shown that “compensation” of any kind is warranted as a result of his back injury in 1993 which ultimately served as the basis to award him severance pay in 1999.

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 that 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

___jhk__  ____mvt_  ___mhm__  DENY APPLICATION

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

INDEX

CASE ID	AR2000049411	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010417	
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.	108.00	
2.		
3.		
4.		
5.		
6.