MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           25 October 2001                    
	DOCKET NUMBER:   AR2001051656

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Ronald E. Blakely		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:  That his 40 percent disability rating be increased to 100 percent, retroactive to the day he was retired.

APPLICANT STATES:  Physicians from the Department of Veterans Affairs (DVA) have said that he was totally disabled when he retired from the Army.  In addition, the Social Security Administration (SSA) awarded him a total disability pension effective 9 May 1989.

In support of his application he submits documents from the DVA which show that he was awarded a 40 percent disability rating from that department; 40 percent for chronic left superior and inferior gluteal nerve injury secondary to left SI joint and pubic sympaysis disruption with fibrous union, and zero percent for fracture of third finger, left hand.  The DVA records also show that the applicant was diagnosed with Huntington’s Chorea, a hereditary condition which exhibits symptoms of dementia and motor dysfunction, around 1990, but the DVA determined that since the applicant did not exhibit any symptoms of that condition while on active duty, it was not service connected.

The applicant also submits a copy of his military and DVA medical records.

The applicant did not submit documentation confirming his contention that he has been awarded a disability pension by the SSA.

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

He was commissioned upon successful completion of his studies at the US Military Academy, and entered on active duty on 6 June 1979.  He completed the Adjutant General Basic and Advanced Course, and performed duties as a Personnel Systems Management officer, Operations Research Systems Analysis officer, and Armor officer.  He was promoted to the rank of captain.  

On 5 September 1989 the applicant was honorably discharged due to his placement on the Retired List, rated 40 percent disabled.

In the processing of this case an advisory opinion was obtained from the Office of The Surgeon General (OTSG).  In that opinion Huntington’s disease is defined and its symptoms detailed, with the conclusion made that the applicant did not exhibit any symptoms of that disease while he was on active duty.  Also obtained was an advisory opinion from the Army Review Boards Agency (ARBA) Medical Advisor who chronicled how the applicant was severely injured in a motorcycle accident in September 1979, how he was determined medically disqualified by a Medical Evaluation Board (MEB) and physically unfit by a Physical Evaluation Board (PEB) on 19 January 1982, how he was determined physically fit by a formal PEB on 2 March 1982 with a permanent profile for his lower extremities, and how he was again determined medically disqualified by an MEB on 22 May 1989, which led to a finding of physical unfitness by a PEB, a finding which was upheld by a formal hearing.  In addition, an advisory opinion was obtained from the Physical Disability Agency (PDA) which also chronicles the applicant’s medical history, concludes that the applicant did not have any manifestations of Huntington’s disease while he was on active duty, opines that since Huntington’s disease is a hereditary disorder it could not be incurred while the applicant was entitled to basic pay, and recommends that the applicant’s military records remain unchanged.  The applicant was furnished copies of these advisory opinions and given the opportunity to comment.  His wife responded in his behalf stating that her husband had been told by physicians that the Army lifestyle and pressures, or even his motorcycle accident, could have caused an early onset of Huntington’s disease.  She contends that as early as 1982 her husband would fall and run into things because of physical instability and could not follow through on orders because of mental instability.  

Army Regulation 635-40, in effect at the time provided pertinently that while a soldier may have medical conditions or physical impairments ratable under the Veterans Administration Schedule for Rating Disabilities, he will not be retired or separated because of those conditions or impairments unless they render him unfit because of physical disability.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinions, it is concluded:

1.  As is evident by the regulatory citations contained in the evidence of record, in order to be rated for a condition by the Army, the condition must render the soldier physically unfit to perform his or her duties.  Since there is no evidence that the applicant exhibited symptoms of Huntington’s disease while he was on active duty, contrary to the applicant’s wife’s contentions, that disease could not have been physically unfitting.  As such, the applicant was properly not rated for Huntington’s disease.

2.  The informal PEB’s recommendation that the applicant be rated 40 percent disabled for residuals of his motorcycle accident was upheld by a formal PEB, and a review of that recommendation by the PDA has confirmed its appropriateness and legal sufficiency.  The applicant has not submitted any evidence or argument which would cause this Board to question the correctness of the percentage of disability he was awarded by the Army for the residuals of his motorcycle accident.  

3.  While the applicant did not submit documentation to substantiate his SSA disability pension, applying to the SSA for disability benefits would be appropriate.  While a condition may not be compensable by the Army or the DVA because it was not service connected, other agencies and departments within the Government may provide benefits or compensation, subject to the rules, regulations and laws governing those agencies and departments.

4.  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

__rjw  ___  ___kan __  ___reb__  DENY APPLICATION

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

INDEX

CASE ID	AR2001051656	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011025	
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.	108.04	
2.		
3.		
4.		
5.		
6.