MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:           30 October 2003
		DOCKET NUMBER:  AR2003088911

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis L. Greenway		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. Larry C. Bergquist		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, that he be medically boarded in accordance with the recommendations and references listed by the 3345th U.S. Army Hospital Augmentation letter dated 21 October 1997.  He also requests that orders be published to place him in the Retired Reserve after he is medically boarded.

APPLICANT STATES:  That no action was taken by the command to act on the recommendation given by the medical command or in accordance with Army Regulation governing medical problems.  In support of his application, he submitted a copy of his discharge orders from the U.S. Army Reserve (USAR) Control Group (Reinforcement); a letter from the Commanding Officer, U.S. Army Reserve Personnel Command (ARPERCEN), Transition and Separations Branch; his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter); a Standard Form 88 (Report of Medical Examination); and a memorandum from the commanding officer of the 3345th U.S. Army Hospital Augmentation, Birmingham, Alabama.

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

The applicant was born on 28 November 1949.  After having served as an enlisted soldier in the Regular Army, the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 2 March 1977.

On 13 November 1995, ARPERCEN notified the applicant that he had completed the required years of service to be eligible for retired pay at age 60.

The applicant's Report of Medical Examination dated 8 April 1997 shows he was issued a physical profile of "214121" and was found unqualified for retention in accordance with Army Regulation 40-501, paragraph 3-14d(1).

On 23 September 1997, the applicant was issued a permanent physical profile of "214121" due to aseptic necrosis bilateral hips.  He was allowed no physical activities.  The profiling officer did not recommend the applicant for a medical evaluation board (MEB) or any form of physical disability processing prior to his discharge.

In a 21 October 1997 memorandum from the Commander of the 3345th United States Army Hospital Augmentation, Birmingham, Alabama, the commander indicated that a review of the profile examination conducted for the applicant on 7 April 1997 revealed that the applicant was not eligible for retention under the provisions of Army Regulation 40-501, paragraph 3-14d(1).  The memorandum indicated that the disqualification was "severe pain, limitation of motion, and of function" from aseptic necrosis of both hips.  The commander stated that the applicant was unable to walk long distances, march, and run or climb up and down.  The memorandum indicated that soldiers who did not meet the fitness standards set by chapter 3, Army Regulation 40-501, were to be processed as prescribed in chapter 9, Army Regulation 40-501 for members of the USAR.  

Department of the Army, U.S. Army Reserve Personnel Command, St. Louis, Missouri Orders D-08-959460 dated 24 August 1999 discharged the applicant from the USAR Control Group (Reinforcement) on 23 August 1999.

Army Regulation 40-501 (Standards of Medical Fitness), paragraph 9-13 pertains to disposition of medically unfit Reservists.  This regulation states that Reservists who normally do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140-10 or discharged from the USAR per Army Regulation 135-175 or 135-178.  Reservists will be transferred to the Retired Reserve only if eligible and if they apply.  Reservists who were found unfit may request continuance in an active USAR status.  

Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 8 governs the rules for processing soldiers of the Reserve component through the disability system.  Paragraph 8-2c states that referral for processing does not mean an automatic entitlement to disability compensation.  Once referred, a determination must be made whether the disease was the proximate result of performing duty.

Paragraph 8-3a of Army Regulation 635-40 states, in pertinent part, that in order for soldiers of the Reserve component to be compensated for disabilities incurred while performing duty for 30 days or less, to include inactive duty training, there must be a determination by the Physical Evaluation Board that the unfitting condition was the proximate result of performing duty.

Paragraph 8-9a(4)(c) of this same regulation states 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 duty as specified in paragraph 8-2.

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.  The Board noted the applicant's contention that no action was taken by ARPERCEN to act on the recommendation given by the medical command or in accordance with Army Regulation governing medical problems.  The evidence of record shows the applicant was issued a permanent physical profile due to aseptic necrosis bilateral hips.  There is no evidence which shows competent medical authorities recommended the applicant for a MEB or any form of physical disability processing.

3.  Nevertheless, the applicant does not show that this failure has worked to his detriment.  There is no evidence of record and he provides none to show his medical condition was the proximate result of performing duties.  In that instance, a finding that the applicant was unfit for duty would have resulted in his separation without benefits, maybe one year earlier than he was actually separated.

4.  Transfer to the Retired Reserve may be accomplished upon the application of an eligible member.  There is no evidence of record which shows the applicant requested transfer to the Retired Reserve.  Therefore, there is insufficient basis in which to transfer the applicant to the Retired Reserve.

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

CLG_____  EWL_____  LCB_____  DENY APPLICATION

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

INDEX

CASE ID	AR2003088911	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031030	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	100.0000	
2.		
3.		
4.		
5.		
6.