MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           02 AUGUST 2001
	DOCKET NUMBER:   AR2001053485

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John P. Infante		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 the records of her spouse, a deceased former service member (FSM), be corrected to show he received a disability separation.

APPLICANT STATES:  That her spouse was injured while on active duty in Korea, resulting in permanent damage to his spine and lungs.  

EVIDENCE OF RECORD:  The service member's military records were partially destroyed in a fire at the National Personnel Records Center in 1973.  There are no medical records in his available records.

Surviving documents show that the FSM initially enlisted in the Regular Army on 2 March 1944 and reenlisted continuously up to date of his final reenlistment on 3 November 1951.  The applicant served in Korea from September 1950 to January 1951, and from May 1952 to September 1953.

On 31 October 1957, the FSM failed to attain a passing score on a battery of aptitude tests used to determine eligibility for enlistment or reenlistment, and as such he was denied reenlistment.

On 7 November 1957, the FSM was honorably discharged under the provisions of Army Regulation 635-200, for expiration term of service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he had 13 years, 8 months and 6 days of creditable service.

In April 1961, a reenlistment waiver submitted by the FSM in November 1957 was approved and he was afforded the opportunity to reenlist.  However, he elected not to apply for reenlistment, and requested disability compensation.

In September 1963 this Board denied the FSM's request for a disability separation.  In the processing of his case an advisory opinion was obtained from the Surgeon General's Office which stated that the FSM had sustained a severe injury (fracture of spine T3-4-5) in December 1950, from which he made an excellent recovery, and that at the time of his separation, over six years later, no residuals of his injury warranted a finding of unfitness for continued military service.  In January 1965, a reconsideration of the FSM's case by this Board was denied.   

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

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 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 to show that there was an error or injustice in this case.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.

3.  The evidence of record indicates the FSM did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

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__  __BJE___  __JPI ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001053485	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010802	
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.