MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           23 July 2002                  
	DOCKET NUMBER:   AR2002069586

	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:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Hubert O. Fry		Member	
	Ms. Gail J. Wire		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 general discharge for unsatisfactory performance be corrected to an honorable discharge for medical disqualification.

APPLICANT STATES:  While he was on active duty, he was hit from behind while jogging by a car traveling at least 67 miles per hour.  He sustained a fractured lower left leg and a tilt in his pelvis which results in a curvature of his spine.  That curvature causes him constant lower back pain which interferes with his ability to maintain gainful employment.

In support of his application he submits a transcript from his Department of Veterans Affairs medical records.  This transcript shows that the applicant is being treated for chronic back pain, left hip pain secondary to a hip fracture, neck pain which was treated with neck fusion surgery, and various psychiatric problems.

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

He enlisted in the Regular Army on 22 September 1987, and was awarded the military occupational specialty of infantryman. 

At 0300, 25 September 1988, the applicant was hit by an automobile.  At the time of the incident the applicant reported to his commander that while he was walking back to his barracks, he got tired and fell asleep in the bushes off the side of the road.  He woke up and stumbled towards the road and was hit by a car.  The applicant sustained a fracture to his left tibia/fibula, and a sprain to his right knee.

On 24 March 1989, the applicant’s commander recommended the applicant be involuntary separated due to unsatisfactory performance.  The recommendation was based on the applicant’s failure to account for his field gear, for making false official statements to a noncommissioned officer and officer, for twice writing bad checks, for losing his military identification card and meal card for the second time, for failing to obey a lawful order, for twice failing to go at the time prescribed, and for failing to secure his wall locker which contained his field gear.

In conjunction with the proposed separation, the applicant’s command scheduled him for a mental status evaluation and a physical examination.  The applicant was cleared psychiatrically, and it would appear that he was determined medically qualified (the record only contains the first page of the SF88, Report of Medical Examination, which does not show whether the applicant had any physical profile restrictions or whether he was determined medically qualified for separation.  However, since the physical examination was done and it did not result in the termination of the applicant’s separation due to unsatisfactory performance, the Board must adopt a presumption of regularity, that the applicant was in fact determined medically qualified).

The applicant’s commander’s recommendation was approved and the applicant was issued a General Discharge Certificate for unsatisfactory performance on 6 April 1989.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the parameters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.    In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career. 

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

1.  While the applicant was in fact hit by an automobile while on active duty, there is no indication that he was determined medically disqualified as a result of those injuries.  Without a finding of medical disqualification, there would be no basis to refer him to a PEB.  Without consideration by a PEB, he could not have been placed on the Retired List for physical disability.

2.  As such, his general discharge for unsatisfactory performance was appropriate, in consideration of his record of inefficiency and misconduct.

3.  If the applicant’s medical condition worsened after his discharge, the DVA has the responsibility by law and regulation to treat any service related medical conditions and, if appropriate, compensate him for any loss of his industrial and social capacity.
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

___hof___  ____gjw__  ___jlp__  DENY APPLICATION

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

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020723	
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.		
2.		
3.		
4.		
5.		
6.