MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            8 March 2000
	DOCKET NUMBER:   AR1999030098

	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. Joseph A. Adriance 		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Ernest W. Lutz, Jr.		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 the entries in block 20 (Details of Medical Conditions and/or Physical Defects Listed) of the Medical Evaluation Board (MEB) Proceedings conducted on him be changed to show the following:  a.) Line of Duty (LOD)-Yes; Aggravated on Active Duty-h.) yes; and Optimum Hospital Improvement for Disposition Purposes-j.) No.

APPLICANT STATES:  In effect, that he has had persistent back pain since being involved in a Gamma Goat accident on 3 May 1973.  He claims this is recorded in his medical records and he has included a letter from a civilian doctor which supports his contention that the accident could have been a contributory factor in his medical condition.  He goes on to indicate that he was never told that the entries in his MEB findings needed to be changed and he contends his case was never fairly considered.  He also states that he was lied to by the doctors at the hospital and was not fairly represented at the time. 

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

He entered the Regular Army on 21 July 1972 for 3 years.  He successfully completed basic training at Fort Jackson, South Carolina and was assigned to Fort Bragg, North Carolina to perform duties in military occupational specialty 13A (Cannoneer).  

The applicant’s medical records reveal that he was seen at Womack Army Hospital on four separate occasions, during March and April 1973, for symptoms related to the illness which ultimately led to his discharge.  In May 1973, he was again seen at the hospital, this time after being involved in an accident while a passenger in a Gamma Goat. 

On 13 June 1973, a medical evaluation of the applicant was conducted and a clinical record narrative summary was prepared for presentation to a MEB.  The summary outlined the history of the applicant’s present illness by stating that the applicant was being admitted for an evaluation of proteinuria which had been known to be present since the autumn of 1971.  This evaluation resulted in the applicant being diagnosed with Nephrotic syndrome due to focal glomerulonephritis and in his being declared unfit for general military service .  It further recommended, since this condition had existed prior to the applicant’s entry into service, that he be separated under the provisions of Chapter 9 of Army Regulation 635-40.  

On 17 September 1973, a DA Form 8-118 (Medical Board Proceedings) was prepared on the applicant.  This document indicated that the applicant had been present during the proceedings of the MEB and did not present any views on his own behalf.  It also specified that the applicant did not wish to continue on active duty.  The MEB found that the applicant was medically unfit for further military service based on the diagnosis of Nephrotic syndrome due to focal glomerulonephritis.  

Block 20 of the MEB proceedings (Details of Medical Condition and/or Physical Defects) indicated that the applicant’s condition was not contracted in the line of duty and that the cause of his illness was not incident to service.  In addition, it found that his medical condition existed prior to his entering active duty and that it had not been aggravated by active duty.  Further, the MEB determined that there had been optimum hospital improvement for disposition purposes and that the maximum hospital benefit had been received.  A brief description of the applicant’s medical condition was provided, which stated that he had protein in the urine.  The MEB finally recommended that applicant be separated from the service under the provisions of Chapter 9, Army Regulation 635-4O.

On 19 September 1973, the applicant prepared a request that he be discharged based on the findings and recommendations of the MEB.  In this request he indicated that he understood that his condition had been to found to exist prior to his entering military service and that it was neither incident to or aggravated by his military service.  He also confirmed that he had been fully informed and understood that he was entitled to the same consideration and processing as any other member of the Army who is separated for physical disability, which included consideration of his case by the adjudication system established by the Secretary of the Army.  

The evidence or record shows that the applicant elected not to exercise his right to a full and fair hearing by the Physical Evaluation Board (PEB).  He further stated that he understood that if the findings and recommendations of the MEB were confirmed he would be expeditiously separated from the Army.  He also acknowledged that his entitlement to veterans benefits would be determined by the VA and he indicated his understanding that if his request for separation were approved he would be discharged by reason of physical disability-existed prior to service (EPTS).  

On 19 September 1973, the findings and recommendations of the MEB were approved by competent medical authority.  Accordingly, on 28 September 1973, the applicant was honorably discharged after completing 1 year, 1 month, and 
28 days of active military service.  

The applicant provides a statement from a civilian medical doctor, dated, 
17 March 1988, in support of his application.  In this statement, the doctor indicates that the automobile accident the applicant was involved in could have resulted in some renal trauma, which could have been a contributory factor to his current renal insufficiency and his need for chronic dialysis and transplantation. 

Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System and set forth the policies, responsibilities, and procedures that applied in determining whether a soldier was unfit because of physical disability to reasonably perform their duties.  If a soldier was found unfit because of physical disability, the regulation provided for the disposition of the soldier according to applicable laws and regulations.   

Chapter 9 of the regulation, in effect at the time, provided for the separation of an enlisted soldier for non-service aggravated conditions that existed prior to service (EPTS) when the soldier requested waiver of PEB evaluation.  In order to qualify for separation under these provisions the soldier had to be eligible for referral into the disability system based on not meeting  medical retention standards as determined by the MEB.  The disqualifying defect or condition must have existed prior to entry on current period of duty and could not have been aggravated while on active duty.  In addition, it had to be determined that further hospitalization or institutional care was not required and the soldier, after being advised of the right to a full and fair hearing, had to waive PEB action.  Finally, the soldier had to be advised that a PEB evaluation was required for receipt of Army disability benefits, but waiver of the PEB will not prevent applying for VA benefits. 

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.  The Board noted the applicant’s contention that his physical disability was incurred in the line of duty, as a result of an accident he was involved in while on active duty.  However, the Board determined that these claims are not supported by either the evidence of record nor the independent evidence submitted by the applicant.  Therefore, the Board concluded relief is not warranted in this case.

2.  The Board found that the medical evidence of record, as documented in the published MEB proceedings, clearly showed that the applicant’s physical disability was the result of a medical condition that existed prior to his entry on active duty.  Subsequently, these findings were approved by competent medical authority and the applicant concurred in the findings and recommendations of the MEB.

3.  Additionally, after being fully advised of the implications of his action, the applicant waived his right to have his case evaluated by the PEB and voluntarily requested administrative separation from the Army.  The Board was satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected through the separation process.

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 the aforementioned 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 __  __eja ___  ___ewl __  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030098	
SUFFIX		
RECON		
DATE BOARDED	2000/03/08	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1973/09/28	
DISCHARGE AUTHORITY	AR 635-40 	
DISCHARGE REASON	EPTS	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 252	122.0000	
2.		
3.		
4.		
5.		
6.