MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            2 March 2000                 
	DOCKET NUMBER:   AR1999030100

	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. Edmund P. Mercanti		                         Analyst	

  The following members, a quorum, were present:

	Mr. Edwin S. Castle		Chairperson	
	Mr. Stanley Kelley		Member	
	Ms. Kathleen A. Newman		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 his military records be corrected to show that he was medically retired from the USAR.

APPLICANT STATES:  He injured his knee while negotiating the officer’s confidence course.  He was seen at that time by a military physician who told him that he would have to receive follow-up medical care for his injury when he returned to his USAR unit.  He never received that medical care.  Later, while on a weekend drill, he tore his right bicep while lifting a tarp.  He was sent to a hospital where an incorrect diagnosis was made on his injury, he was not given any medications, and he was not scheduled for any follow-up medical care.  He adds his positive urinalysis was also false since he never provided a urine sample at his unit.

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

He enlisted in the USAR on 22 May 1981 and was promoted to pay grade E-4.  

On 16 May 1988 he was notified that he was being considered for involuntary separation due to civil conviction.  He had been found guilty of possession of a controlled and dangerous substance.  Additional charges of manufacturing a controlled and dangerous substance had been dismissed.  His sentence consisted of 1 year confinement which was suspended, and 36 months supervised probation.

The applicant reenlisted for assignment to the USAR Control Group (Reinforcement) on 21 May 1988.

On 27 August 1988 he was reassigned from the USAR Control Group to another USAR unit.  On 31 March 1989 he was involuntarily transferred back to the USAR Control Group due to his failure to report to his new unit, as ordered.

On 22 February 1991 he was again reassigned from the USAR Control Group to a USAR unit.  He reenlisted for 6 years on 5 August 1991.

On 6 December 1992 he was involuntarily transferred to the USAR Control Group due to his failure to attend drills with his unit (unsatisfactory participation).

On 8 July 1996 he was again reassigned from the USAR Control Group to a USAR unit.

On 18 August 1997 the applicant was the subject of a urinalysis test in which he tested positive for cocaine.  His commander then initiated action to involuntarily separate him for misconduct, use of illegal drugs.  However, because of the proximity of the expiration of the applicant’s term of service, action to separate him due to misconduct was terminated and he was honorably discharged on 20 October 1998.

The applicant’s Military Personnel Records Jacket do not contain his medical records.

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 perimeters 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. 

Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, provides for the medical retirement and for the discharge for physical unfitness, with severance pay, of soldiers who incur a physical disability in the line of duty while serving on active or inactive duty.  However, the disability must have been the proximate result of performing military duty.

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.  The applicant has not submitted, nor do his military records contain, any evidence which would show that he was injured while on a duty status or that he was physically unfit to perform his duties.

2.  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

_esc ____  _sk_____  _kan ____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030100	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000302	
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.	108.05	
2.		
3.		
4.		
5.		
6.