RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           13 MAY 2004                  
	DOCKET NUMBER:   AR2003097906

	I certify that hereinafter is recorded the true and complete record of the proceedings 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. Mark Manning		Chairperson	
	Mr. Richard Dunbar		Member	
	Ms. Mae Bullock		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests physical disability retirement or separation.

2.  The applicant states that he was discharged because of medical problems as noted in his report of medical examination, but was not referred to a Medical Evaluation Board (MEB).  He enlisted in the Army National Guard and was discharged for medical reasons and the inability to perform in his specialty. 

3.  The applicant provides a copy of a report of medical examination, a copy of a request for a control number in connection with the applicant's ETS (expiration of term of service), a copy of an annual medical certificate, copies of e-mail correspondence, copies of correspondence relating to the applicant's fitness for duty, and copies of medical evaluations by civilian physicians.

CONSIDERATION OF EVIDENCE: 

1.  The applicant was a member of the Reserve components who on                 15 September 1993 requested enlistment in the Regular Army.  His request was approved.  He enlisted in the Regular Army for six years in pay grade E-4 on      28 December 1993.  In May 1994 he completed a CH-47 helicopter repairer course at Fort Eustis, Virginia.    

2.  Orders published by the Army Aviation Center at Fort Rucker on 31 October 1994 show that the applicant was reduced to specialist, from sergeant, effective on 5 October 1994, for failure to complete warrant officer flight training.  

3.  The applicant was discharged at Fort Rucker on 27 February 1996 to accept an appointment as a warrant officer.  On 7 November 1996 he was discharged in the grade of warrant officer one (W1).  He enlisted in the Regular Army for           4 years in grade E-5 the following day.

4.  A 1 July 1999 medical report indicates that the applicant was in a motor vehicle accident on 12 June 1999, sustaining an injury to his right knee and his left foot.  He was treated with staple repair of his right knee and was subsequently transferred to Tripler Army Medical Center, and discharged the following day.  He had no broken bones.  The report indicates that he had persistent swelling and pain without paresthesias.  The doctor diagnosed his condition as left ankle dislocated peroneal tendons, and right knee laceration.  

5.  On 28 December 1999 a doctor in Honolulu evaluated the applicant, stating that his initial impressions included a left ankle peroneal tendon dislocation/ligamentous disruption status post open repair in July 1999; probable left tarsal tunnel with CRPS (?) features secondary to swelling and extra-articular injuries; persisting right knee extra-articular swelling and pain, enthesopathy, secondary to laceration, pre-patellar bursistis, probable medial collateral ligament injury; myofascial injury, lumbar and cervical, persisting, partially treated; and possible left L5-S1 radiculopathy vs. tibial nerve injury.
 
6.  The applicant was discharged at Schofield Barracks, Hawaii on 4 February 2000, in pay grade E-5, because he signed a declination for continued service.  He enlisted in the Army National Guard for one year and was assigned to an aviation unit in Grand Ledge, Michigan.

7.  The 27 September 1999 report of medical examination (separation physical) shows that the applicant had various medical problems, but was determined to be medically qualified for separation with a physical profile serial of 1 1 1 1 1 1.  

8.  In a 6 April 2000 annual medical certificate the applicant indicated that he had been hospitalized or had surgery since his last periodical physical examination, and was currently being evaluated by the Department of Veterans Affairs (VA).  

9.  On 1 May 2000 the applicant's commanding officer requested that the applicant receive a medical evaluation, stating that the applicant was in an automobile accident in June 1999 while on active duty.  He stated that he was concerned with the applicant working on aircraft.  In response thereto, a member of the Michigan Army National Guard requested that the applicant's commander provide certain information, to include recent medical information from a physician, and the commander's letter concerning the applicant's ability to perform his duties.  E-mail correspondence between an official of the Michigan Army National Guard and the applicant's commanding officer indicate attempts to determine the ability of the applicant to perform his duties.

10.  Evidence concerning the applicant's discharge from the Army National Guard is not available.  

11.  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.

12.  Army Regulation 635-40, paragraph 3-2b states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

13.  That paragraph goes on to say that when a member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform her duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

14.  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 PEB.

15.  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.

16.  Army Regulation 635-40, chapter 8, outlines the rules for processing through the disability system Soldiers of the Reserve component who are on active duty for a period of less than 30 days or on inactive duty training; and outlines the criteria under which Soldiers of the Reserve component, whether or not on extended active duty, apply for continuance in the active Reserve.

17.  Paragraph 8-2 states that Soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, etc.

18.  Paragraph 8-6 states that when a commander believes that a Soldier not on extended active duty is unable to perform his duties because of physical disability, the commander will refer the Soldier for medical evaluation.  Paragraph 8-6b states in effect, that the medical treatment facility will forward the medical evaluation board to the Soldier’s unit commander for disposition under applicable regulations. 

19.  Paragraph 8-9 states in pertinent part that a Soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc.
DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, and the applicant has not provided any, to show that he was physically unfit for service when he was discharged on 4 February 2000.  Competent medical authority determined that the applicant was medically qualified for separation.  Additionally, he apparently was discharged at his own volition, declining to continue his service in the Army.   

2.  Although evidence exists that the Michigan Army National Guard was attempting to determine his medical condition and fitness for continued service, there is no evidence concerning any such determination, any evidence indicating the circumstances or the reason that he was discharged from the Guard, or even any evidence that he was, in fact, discharged from the Guard. 
  
3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   
  
BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MM  __  __RD ___  __MB ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		_____Mark Manning ______
		        CHAIRPERSON

INDEX

CASE ID	AR2003097906	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040513	
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.