MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            8 June 2000
	DOCKET NUMBER:   AR1999030438

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		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 Certificate of Release or Discharge (DD Form 214) be corrected to show his Narrative Reason for Separation as retired by reason of physical disability instead of physical disability with severance pay.

APPLICANT STATES:  That a clerical error was made during the preparation of his Report of Separation (DD Form 214) because the Physical Evaluation Board (PEB) reconsidered his case and determined that he should have been medically retired.  In support of his appeal he submits a copy of PEB proceedings dated 24 January 1992.

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

On 31 May 1972, he enlisted in the Army for 3 years in the pay grade of E-1.  He successfully completed his training as a patient administrative specialist.  On 8 May 1975, he extended his 3-year enlistment for a period of 3 months.  He was honorably released from active duty on 25 August 1975 to accept a direct assignment in the USAR (Ready).

He remained in the Ready Reserve until orders were published on 17 April 1984 ordering him to active duty in the Active Guard Reserve (AGR) effective 21 May 1984.  He successfully completed his training as a practical nurse and as a field recruiter and he remained on active duty through a series of reenlistments and extensions.

On 3 December 1990, the applicant was placed on a permanent physical profile after being diagnosed with osteoarthritis of the left knee.  His assignment limitations included no running, marching more than ½ mile and no jumping.  He was subsequently placed on another physical profile after he was diagnosed as having a profound hearing loss in his left ear.  His assignment limitation included no exposure to noise or weapon firing without the use of properly fitted hearing protection.

On 12 February 1991, commander of the 124th US Army Reserve Command was notified by Headquarters, Sixth U.S. Army that the applicant had been identified as possessing a permanent physical profile with a 3 or 4 in one or more of the PULHES factors.  The commander was informed that under the provisions of Army Regulation 600-60, all soldiers possessing a permanent profile of 3 or 4 in one or more of the PULHES factors are directed to appear or waive appearance before a properly constituted Military Occupational Specialty/Medical Retention Board (MMRB).  The commander was also informed that the purpose of the

MMRB was to determine the soldier’s ability to physically perform Military Occupational Specialty (MOS) duties in a worldwide environment.  The commander was requested to submit, in writing, an evaluation of the applicant’s ability or inability to physically perform his Primary Military Occupational Specialty (PMOS).

On 7 April 1991, the applicant’s commanding officer responded by memorandum stating that the applicant was serving as an AGR Assistant Chief Wardmaster and that he also held a patient administrative specialist MOS.  The commander further stated that none of his current assignments in either MOS is significantly impacted by the profile limitations and that it should be noted that the applicant is automatically limited in assignment for worldwide field environment due to his MOS.

The available records show that on 23 April 1991, MMRB proceedings were conducted.  The board found that the applicant was not performing duties in his PMOS and that his medical conditions precluded him from satisfactory performance of his PMOS, which is required in a worldwide environment.  The MMRB recommended that the applicant be placed in a probationary status of 6 months and that his progress be evaluated after 90 days.  The MMRB also stated that if progress was not noted prior to the end of the probationary period, the applicant should be referred to the next MMRB scheduled for 16 July 1991.

The appropriate authority approved the findings and recommendation of the MMRB on 3 May 1991.  Accordingly, the applicant was placed on probationary status for a period of 6 months.

On 12 June 1991, the applicant underwent a medical examination to determine whether he should be referred to a Medical Evaluation Board (MEB).  Although the MEB proceedings are not available for review, it is reasonable to presume that the MEB recommended that the applicant be referred to a PEB.

The initial PEB proceedings are also unavailable for review.  However, on 24 January 1992, an informal PEB convened to reconsider the findings of the initial PEB based on a review of the applicant’s health record.  The PEB assigned the applicant a combined service-connected disability rating of 40 percent for degenerative arthritis of the cervical spine, right knee, left knee, right ankle and left ankle.  The PEB determined that his functional limitations in maintaining agility, mobility and lifting ability, caused by his physical impairments made him unfit to perform his duties.  The PEB recommended that he be retired by reason of permanent physical disability.  The applicant concurred with the PEB’s findings and recommendation and he waived a formal hearing of his case.

On 26 May 1992, the applicant was telephonically notified that the PEB’s findings and recommendation had been modified and he had been assigned a combined service-connected disability rating of 20 percent for degenerative arthritis of the right knee and right ankle.  The modified PEB proceedings show that the board recommended that he be separated with severance pay if otherwise qualified.  The records show that the applicant concurred with the modifications made by the PEB.

Accordingly, 30 June 1992, he was discharged with severance pay under the provisions of Army Regulation 635-40, by reason of physical disability.  He had completed 12 years, 9 months and 2 days of total active service.

Army Regulation 635-40 provides that members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  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, 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.

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 actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant

2.  The evidence of record clearly shows that on 26 May 1992, the applicant was notified of the modification that was made to the PEB’s 24 January 1992 findings. The evidence of record further shows that he concurred with the PEB’s modified recommendation that he be separated with severance pay.  There is no evidence of record to support his contention that a clerical error was made during the preparation of his DD Form 214.
3.  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.

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

__slp____  __ao____  __lm____  DENY APPLICATION

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

INDEX

CASE ID	AR1999030438	
SUFFIX		
RECON		
DATE BOARDED	2000/06/08	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1992/06/30	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.0000/PD	
2.  179	108.0200/percentage of disability	
3.		
4.		
5.		
6.