MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:             30 March 2000                  
	DOCKET NUMBER:    AR1999030105

	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. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Barbara J. Ellis		Chairperson	
	Mr. Hubert O. Fry, 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:  That he be reinstated into the U.S. Army Reserves (USAR).

APPLICANT STATES:  That he would have included a statement concerning his health in the packet that was forwarded to the Qualitative Retention Board (QRB), if he had been given sufficient time to respond to his QRB notification.  He further believes he should have been given an opportunity to appear before a medical evaluation board prior to separation from the USAR.

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

That he entered the Regular Army on 14 August 1974, and was released from active duty on 11 August 1978.  He subsequently accepted assignment to an USAR unit and completed training as a Material Storage Handling Specialist on 24 September 1991.  He achieved the rank of sergeant and was separated honorably from the USAR on 15 October 1997, as a result of nonselection for retention.

The applicant was initially assigned to a unit of the 81st Regional Support Command.  He sustained a back injury in the USAR in 1994.  A line of duty investigation was initiated and approved, on 14 March 1994. He sustained a re-injury on 6 July 1996, while on annual training.  A formal line of duty investigation was initiated and approved 2 years later on 21 December 1998.

Utilizing DA Form 3349, Physical Profile, the applicant was given a permanent profile for back injury on 23 January 1997.  On 25 February 1997 the company commander marked the appropriate blocks on the same DA Form 3349 to indicate that the profile does require a change in the applicant’s military occupational specialty and duty assignment.

On 24 March 1997, a USARC Form 46-2-R, Soldier’s Incapacitation/Fitness for Duty, was completed.  It found the applicant not fit to perform military or civilian duties.

On 29 April 1997, the applicant underwent a retention physical that found him medically qualified for retention with a permanent profile.

In June 1997, the applicant submitted an incapacitation pay claim for a loss of inactive duty training income for April and May 1997.  The claim was denied as the applicant had remained on his civilian job and performed his military function for the previous 39 months.

In April 1999, the applicant contacted the 81st Regional Support Command regarding a medical evaluation board.  On 21 April 1999 the U.S. Army Medical Department Activity at Fort Jackson, South Carolina returned the request for a 
medical evaluation board without action.  They informed the 81st Regional Support Command that the medical evaluation system is for the use of soldiers currently under a binding agreement to the armed forces.  The 81st Regional Support Command then advised the applicant to seek assistance from the Veterans Administration.

Army Regulation 135-205, Army National Guard and Army Reserve, Enlisted Personnel Management, provides, in pertinent part, that enlisted soldiers, will be notified that that their records will be reviewed by the QRB. A notification memorandum is forwarded to the solider.  The soldier will return the notification memorandum to the unit commander within 10 days after receipt.  Soldiers refusing to complete the endorsement or failing to respond in a reasonable period will be reported to the unit commander.  The commander will send the soldier’s record and a statement of facts to the convening authority.  If not selected for retention, the soldier will be discharged.

That same regulation holds that QRB will evaluate the future benefits that can be expected to accrue to the USAR from the continued membership status of each person.  The board should consider several factors to include demonstrated performance as attested by evaluation reports, and the medical condition and physical fitness are such that there are no significant assignment limitations.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation 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 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. 

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.  On 23 January 1997, the applicant was given a permanent profile.  The commander determined that the profile would interfere with the applicant’s performance of his military duties and requested a fitness for retention physical.  On 24 March 1997, the applicant was found not fit for military duties.  This finding was not based on a physical and does not make a determination of fitness for retention.  The same doctor after a physical examination on 29 April 1997 found the applicant fit for retention.  This finding is consistent with the fact that the applicant’s back problems had not prevented him from performing his military duties satisfactorily over the previous 20-year period.  Entry into the physical evaluation system is an injury or illness that drops the soldier below retention standards.  The finding of fitness eliminated the applicant from further processing in the physical evaluation system at that time.

2.  The applicant completed his military career, was transferred to the Retired Reserve and is eligible for retired pay.  There is no loss of career for which to compensate him.

3.  In the absence of evidence to the contrary, it must be presumed that the unit sent the information concerning the QRB to the applicant.  When the applicant failed to respond the commander acted correctly by forwarding his record without the applicant’s signature. The governing Army regulation makes no provisions to allow the commander to delay transmission of the records to await for additional information, nor is there any indication that the applicant requested such a delay. The applicant states that if he had been given the opportunity he would have sent with his records a statement of his medical fitness.  It appears that this would have been a self-inflicted adverse action.  The applicant would have only increased his chance for non-selection by highlighting his medical condition.

4.  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

_bje_____  _hof ____  _ewl____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030105	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000330	
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.	110.03	
2.		
3.		
4.		
5.		
6.