MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 October 2001                   
	DOCKET NUMBER:   AR2001060103

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Jose A. Martinez		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 separation be changed to a medical discharge.

APPLICANT STATES:  That he injured his back while on active duty in Saudi Arabia.  After returning home he became ill with fatigue, memory loss, excessive yawning, seizures, a sleep disorder and blood in his stool.  He was not ill prior to his duty in the Persian Gulf.  He was not given a fair rating by the medical board. The Social Security Administration has determined that his illnesses are permanent.  

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

After having had prior service in the U. S. Marine Corps, he enlisted in the U. S. Army Reserve on 21 April 1979.

On 28 July 1991, the applicant was ordered to active duty in support of Operation Desert Shield/Storm.  On 25 October 1991, while serving in Saudi Arabia/Kuwait, he injured his back while moving furniture.  He awoke the next morning with pain. He went to sick call and was given 24 hours bed rest in Saudi Arabia.  Two days later he was to join his unit in Kuwait but with the pain still present he went directly to sick call in Kuwait where he was given a valium injection.  Two days later, with the pain still present, he was returned to the United States.  He was released from active duty on 7 February 1992. A Correction to DD Form 214, Certificate of Release or Discharge from Active Duty, DD Form 215, shows that he served in Southwest Asia from 6 August – 15 November 1991.

The applicant’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 14 July 1994.

26 October 1992 is the earliest dated document recording conditions other than the applicant’s back pain, i. e., weight gain, short temper, fitful sleep.  He was referred for a Persian Gulf examination and is entered on the Persian Gulf Registry.

Around March 1997, a Physical Evaluation Board (PEB) found the applicant to be unfit for duty.  The original PEB is not available.  He rebutted the findings (his rebuttal is not available) and on 1 April 1997, after carefully considering his rebuttal, the U. S. Army Physical Evaluation Board found that no change to the original findings was warranted.  A Revised Physical Evaluation Board (PEB) Proceedings form, DA Form 18, shows that the applicant was found unfit for duty by reason of low back pain with L4/L5/S1 radiculopathy with a disability rating of 20 percent.  His sleep apnea was found to be unfitting with a disability rating of zero percent and found there was compelling evidence to support a finding that it was not the proximate result of performing duty and there was no causal relationship between his military duty and the condition.  Four other unknown diagnoses were found to be not unfitting.  One other diagnosis was determined to be appropriate to be dealt with through administrative channels and not the disability system.  The PEB determined that there was inadequate evidence to show the other diagnoses were properly in the line of duty.  As he had a rating of less than 30 percent and he had 20 qualifying years of service for a nonregular retirement, he was given the option of accepting disability severance pay and forfeiting his Reserve retired pay or requesting transfer to the inactive Reserve and receiving retired pay at age 60.  

The applicant apparently again rebutted the PEB’s findings.  On 29 April 1997, the U. S. Army Physical Disability agency reviewed his rebuttal along with the entire case file and determined that the PEB’s findings and recommendations were supported by substantial evidence and were therefore affirmed.

On 1 July 1997, the applicant was assigned to the Retired Reserve at his request.

On reconsideration, the Social Security Administration made a finding that the applicant was under a disability beginning 9 February 1995, the date of his initial filing. 

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Under the laws governing the Army Physical Disability Evaluation system, soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

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 that would satisfy this requirement.

2.  There is no evidence to show that the applicant suffered from any condition other than back pain in Saudi Arabia.  The evidence of record shows that he first complained of other conditions around October 1992, 11 months after he departed Southwest Asia.  There is insufficient evidence to show that these symptoms were the proximate result of or aggravated by performing military duties. 

3.  The Social Security Administration operates under its own policies and regulations and determines disability as it sees fit and has no bearing on the Army’s disability system.

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

__jhl___  __mdm___  __jam___  DENY APPLICATION

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

INDEX

CASE ID	AR2001060103	
SUFFIX		
RECON		
DATE BOARDED	20011011	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.