MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             8 June 2000                  
	DOCKET NUMBER:    AR1999032593

	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	
	Mr. Walter Avery, Jr.		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 retirement for length of service be changed to a medical retirement.

APPLICANT STATES:  That he believes he developed the disease fibromyalgia during his military career.  He offers that the reason the disease was not diagnosed is because the disease lacks medically determinable physical evidence.  It does not show on blood tests, x-rays, clinical exams, medical diagnoses, or laboratory tests.  Lastly, the disease was not identified as a diagnosis until 1993 – he retired 30 September 1991. 

In support of his request, he submits articles explaining fibromyalgia and extracts of his medical records. 

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

He enlisted into the Regular Army on 18 December 1973 and served continuously until his separation for retirement on 30 September 1991.  He completed 21 years, 8 months and 24 days service and achieved the rank of sergeant first class.  

His records contain noncommissioned officer evaluation reports (NCO-ER) from 1974 to 1991. The applicant was evaluated for physical fitness utilizing the noncommissioned officer evaluation report.  His NCO-ERs in the areas of physical fitness contains only very positive comments.  On the last NCO-ER submitted prior to his retirement, it reflects that the applicant scored a perfect 300 points on the Army Physical Fitness Test.  In addition, there is the comment that “he is energetic and tireless every day”.

Army Regulation 635-40 establishes the Army Physical Disability Evaluation System.  It 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 Army Regulation 40-501, Chapter 3.  If the medical evaluation board determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a physical evaluation board.

Physical evaluation boards 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.

Army Regulation 635-40, Chapter 3, paragraph 2b states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury.  It is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

That same regulation goes on to say that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness.  This presumption of fitness can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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.

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 presumes that if his illness had been diagnosed it would have led to a medical retirement.  If the applicant’s illness had interfered with the performance of his military duties a physical examination to determine his medical qualification for retention would have been requested.  

2.  The applicant’s continued service until retirement indicates the disease did not prevent him from doing his military job.  Nothing in the applicant’s records indicates that his commanders or medical personnel should have entered him into the physical disability, medical retirement process.

3.  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____  ___lem__  ___aao__  DENY APPLICATION

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

INDEX

CASE ID	AR1999032593	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
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.	110.02	
2.		
3.		
4.		
5.		
6.