MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           27 April 2000                  
	DOCKET NUMBER:  AR1999031485

	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. Elizabeth Buchannon		Chairperson	
	Mr. Thomas A. Paqan		Member	
	Mr. Kenneth L. Wright		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 his discharge be reversed, he be ordered back to active duty with service in the National Guard at the rank of Staff Sergeant, and that he deserves at least the award of the Army Commendation Medal for his service.

APPLICANT STATES:  That he was diagnosed with diabetes and discharged from the Army after serving for 6 years, 7 months, and 17 days.  It was determined that the diabetes made him unfit for military service.  He has learned that another soldier who had lost both legs was allowed to remain on active duty. He now believes he was a victim of a double standard.

He states that he followed the informal advice of a military lawyer who informed him that the Army was overstrength and was using the medical board proceedings to thin the ranks. 

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

He entered the Regular Army on 30 September 1980; was trained as a military police investigator; served assignments at Fort Ritchie, Maryland and the Berlin Brigade.  He achieved the rank of staff sergeant and on 8 July 1987 was separated honorably under the provisions of AR 635-40, paragraph 4-24e(3), physical disability with severance pay.

His awards include the:  Army of Occupation Medal-Berlin, Army Service Ribbon, Army Commendation Medal with 1 Bronze Oak Leaf Cluster, NCO Professional Development Ribbon with numeral 3, Army Achievement Medal with 1 Oak Leaf Cluster, Driver and Mechanic Badge, Good Conduct Medal 2nd award, and the Expert Qualification Badge with Pistol, Grenade and Rifle bars.

On 27 April 1987 the findings of the Physical Evaluation Board (PEB) proceedings held on 16 April were approved.  The PEB determined the applicant’s condition as diabetes mellitus, Type l, insulin dependent, treated with NPH 18 units and 11 units regular insulin A.M. and 8 units regular P.M. The PEB stated that individuals affected with Type l insulin dependent diabetes mellitus develop complete failure to produce insulin.  Such individuals will die unless insulin is administered on a strictly regimented basis.  Because of the strict regimen required and inability of the Army to guarantee the life-saving insulin in every case under all circumstances, retention on active duty for such individuals would be life-threatening.  As such, your condition prevents your reasonable performance of your military occupational skill required tasks in a deployable status.  Accordingly, this PEB finds you unfit for duty.  Although you have applied for continuance on active duty, the PEB finds you physically unfit and recommends a combined rating of 20% and that the member be separated from the service with severance pay if otherwise qualified.

On 27 April 1987 the applicant submitted his disagreement with the PEB findings. He asserted that his diabetes was service connected and he requested a formal hearing.

On 11 May 1987 the applicant authored a letter stating “I hereby desire to cancel my request for a formal hearing which was scheduled to convene on                 18 May 1987 as I now elect to concur with the PEB which met on 27 April 1987 with findings that I now be separated from the service with a 20 percent rating.  I concur with those findings and waive my rights to a formal hearing.  I also elect to withdraw my request for consideration for a waiver to remain on active duty as I do not elect to remain on active duty and be processed under the provision of Chapter 6, AR 635-40.”

On 8 July 1987 the applicant was discharged because of his physical disability, and received severance pay in the amount of $17,094.00.

AR 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, Chapter 3. If the Medical Evaluation Board determines the soldier does not meet retention standards, that board will recommend referral of the soldier to a PEB.

PEBs are established to evaluate all cases of physical disability equitability for  the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

Title 10, United States Code, Chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Title 10, United States Code, Section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at less than 30 percent.

Army Regulation 600-8-22, Military Awards, provides, in pertinent part, that the Army Commendation Medal is awarded to any member of the Armed Forces of the United States, while serving in any capacity with the Army, who distinguishes himself by heroism, meritorious achievement or meritorious service.  The decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having awards approval authority.  As a matter of policy, there is no automatic entitlement on the part of any soldier to any Army decoration.

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 applicant was discharged because of his physical disability and received a 20 percent disability rating by a PEB.  He concurred in that determination in a separate letter to the PEB, advising that he concurred with the findings to discharge him from the Regular Army with severance pay.  He has provided no evidence that this decision was incorrect, or that he was poorly advised, or that he should have been retained on active duty.  His separation with severance pay was in compliance with governing laws and regulation.

2.  The applicant mentioned the medical proceedings of another soldier.  The Board focused its attention on whether or not any error or injustice occurred in the medical board proceedings of the applicant.  The applicant’s contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

3.  The applicant provided no evidence that he was recommended for award of the Army Commendation Medal or that an award on his behalf was not properly processed to completion.  In the absence of such evidence, there is no basis for this Board to grant an award.

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

_eb_____  __tap ___  __klw_       DENY APPLICATION

						Karl F. Schneider
				      Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031485	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000427	
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.		
2.		
3.		
4.		
5.		
6.