MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            01 OCTOBER 2002                  
	DOCKET NUMBER:   AR2002072519

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Arthur a. Omartian		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, physical disability retirement or separation.    
APPLICANT STATES:  That he had a temporary profile (T-3) on his back for more than six months, which limited his performance as an infantryman.  He states that he is no longer in the Army Reserve, and wants a reevaluation of his records.  He injured his back in April 1999 and had continued problems until he left the service.  An MRI in September 2000 showed that he had a herniated disk at the L5-S1 region in his back and was considered for a possible recommendation for a Medical Evaluation Board (MEB) or a permanent (P-3) profile.  He had problems after physical therapy and was referred to the neurosurgery department at Landstuhl Regional Medical Center, where he was informed that a MEB would be a waste of time, and that his herniated disk was not that serious since he did not have a nerve compression.  He has been on and off profile from April 1999 to October 2000 and in November 2000, he was placed on temporary profile until his discharge.  He has since learned that he should have been granted a MEB.     

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

The applicant entered on active duty on 27 August 1993.  He was an infantryman.  He was discharged from the Army with an honorable characterization of service on 15 April 2001 at Baumholder, Germany, and transferred to the 464th Replacement Company, a Reserve unit in Germany.  He had 7 years, 7 months, and 19 days of service. 

A 16 October 2000 medical report indicates that the applicant wanted to know the results of his MRI, and also shows that the applicant thought the doctor wanted to do pool therapy and then consider permanent profile versus a MEB.

A 19 October 2000 DA Form 3349 (Physical Profile) shows that the applicant received a T-3 profile because of his chronic low back pain – disk disease.  His temporary profile was continued in December 2000 and January 2001.  

A 27 December 2000 individual sick slip shows that the applicant was seen because of his low back pain, with the examining physician stating that he should receive physical therapy until his spasms were resolved.  A 2 January 2000 individual sick slip indicates that the applicant should continue with his physical therapy.  

A 20 February 2001 report of medical history shows that the applicant indicated that he had various ailments, to include a herniated disk.  A medical report completed at that time shows that prior to ETS (expiration of term of service) the applicant was pending a MEB.  

Prior to his discharge, on 22 February 2001, the applicant enlisted in the Army Reserve for one year, effective on his discharge from the Regular Army.  

An NCO Evaluation Report for the period October 2000 through March 2001 shows that the applicant was an operations NCO with Company C, 2nd Battalion (Mechanized), 6th Infantry Regiment, a unit of the 1st Infantry Division in Germany.  The applicant’s rater stated that the applicant had the endurance and determination to ensure all missions were completed to standard, and that his profile did not hinder his job performance.  Both his rater and senior rater considered his performance and potential to be outstanding, and stated that he should be promoted ahead of his peers.  

The applicant was discharged from the Army Reserve on 21 February 2002.

Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards (MEBs), which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a Physical Evaluation Board (PEB).

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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.  Despite the applicant’s medical condition prior to his discharge in April 2001, he continued to perform his duties as indicated by his March 2001 NCO Evaluation Report.  That report in fact, shows that he was an outstanding soldier, an infantryman with a mechanized infantry battalion, who performed superbly.  His rating officials stated that his profile did not hinder his duty performance. 

2.  The applicant’s enlistment in and service with an Army Reserve unit after his discharge from active duty in April 2001 demonstrates that he was medically qualified for service, and that he himself felt so.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

4.  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.

5.  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

__RVO   _  __MKP  _  __AAO __  DENY APPLICATION

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

INDEX

CASE ID	AR2002072519	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021001	
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.