PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:  7 June 2000
	DOCKET NUMBER:  AR1999030425

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret Patterson		Chairperson	
	Mr. James P. Stueve		Member	
	Mr. Edwin S. Castle		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)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his records be corrected to show he was retired from the Georgia Army National Guard (GAARNG) based on physical disability. 

3.  The applicant states that he is a Gulf War veteran and is rated 30 percent disabled by the Department of Veterans Affairs for migraine headaches, asthma and occasional joint pain.

4.  The applicant’s military records show that he served on active duty from 29 August 1980 to 26 August 1983 (2 years, 11 months and 28 days) and from 11 October 1990 to 3 August 1991 (9 months and 23 days).

5. On 11 February 1996, a quadrennial medical examination conducted by the GAARNG indicated “Healthy Adult Male” with a physical profile of 111111A.

6.  On 13 April 1996, an annual medical certificate filed in his GAARNG medical records indicates “under care of VA” and “MRI showed cyst lesion occipital area.”

7.  On 3 January 1997, a civilian doctor diagnosed him with COPD (Chronic Obstructive Pulmonary Disease) and recommended that he be seen by Army medical personnel for a physical profile.

8.  On 12 July 1998, GAARNG medical personnel recommended a medical separation because of unfitness for continued service.  At the same time, the doctor indicated on a DA Form 689 (Sick Slip) “fit for duty – exam done” and “Pt. Unfit for cont svc AR 40-501 3-30j; Headaches.”

9.  On 1 October 1998, he was separated from the GAARNG under National Guard Regulation 600-200, based on being unfit for retention.  

10.  On 23 March 2000, the Army Review Boards Agency Medical Advisor opined that the applicant should have been entered into the Disability Evaluation System and undergone a Medical Evaluation Board.  Further, the most likely disability percentage awarded by a Physical Evaluation Board in this case would be 10 percent, based on a review of the VASRD, subsection 4.124a, code 8100 and the medical records.

11.  On 23 March 2000, the medical opinion was furnished to the applicant for his acknowledgment/rebuttal.  The applicant forwarded additional copies of medical records.

12. Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

13. Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

CONCLUSIONS:

1.  The medical evidence of record establishes that the applicant was physically unfit at the time of his separation from active duty.

2.  The foregoing conclusion is supported by the advisory opinions furnished by the Army Review Boards Agency Medical Advisor.

3.  In consideration of the foregoing findings and conclusions, the failure of the Department to properly evaluate the applicant's physical condition at the time of his separation was then, and is now, in error and unjust.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by showing that the action separating the individual concerned from active duty on 1 October 1998 is void and of no force or effect; and,

	b.  by showing that on 1 October 1998, he was physically unfit to perform the duties of his office, grade, rank or rating by reason of migraine, 10 percent disabling, under Code 8100 of the VA Schedule for Rating Disabilities; that the disability may be permanent; that it was incurred while he was entitled to receive basic pay as a member of a Reserve Component, not on active duty; that it did not result from misconduct or willful neglect; that it was not incurred during a period of unauthorized absence; that it was incurred in the line of duty; that it was not the direct result of armed conflict; and that it was not caused by an instrumentality of war.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___mp___  ___js___  ___ec___ GRANT AS STATED IN RECOMMENDATION

________  ________  ________ GRANT FORMAL HEARING

________  ________  ________ DENY APPLICATION

		___Margaret Patterson____
		        CHAIRPERSON

INDEX

CASE ID	AR1999030425	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000607	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.108	Disability Separation	
2.		
3.		
4.		
5.		
6.