MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            18 July 2000                  
	DOCKET NUMBER:    AR1999032968

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Elizabeth Buchannon		Member	
	Ms. Margaret V. Thompson		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 records be corrected to show that he was medically discharged.

APPLICANT STATES:  His military medical records show that he suffered from chronic viral hepatitis, back pain, pain in his left leg, stomach pain and elevated temperatures.  He adds that over the years since his discharge his medical defects have deteriorated.

In support of his application he submits reports of examination from the Department of Veterans Affairs in which he was diagnosed as having numerous physical defects, and he submits medical records from German physicians.  While some of these medical conditions existed while he was on active duty, many of those conditions had their inception well after his discharge.

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

He enlisted on 24 February 1977, was awarded the military occupational specialty of food service specialist, and was promoted to pay grade E-5.

His military career culminated in his assignment as a first cook and ration man.  In that capacity he was consistently given above average Enlisted Evaluation Reports (EER’s), including that portion of the EER’s which evaluated his physical fitness.

He was honorably discharged on 24 January 1983 due to his completion of his overseas tour and his having insufficient time remaining on his enlistment contract to justify reassignment to a new unit.

Army Regulation 635-40 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 parameters 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, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, provides for the medical retirement and for the discharge for physical unfitness, with severance pay, of soldiers who incur a physical disability in the line of duty while serving on active or inactive duty.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  While the applicant was treated for various medical conditions while he was on active duty, they were never determined to be medically disqualifying.

2.  Without a finding of medical disqualification there was no basis to refer the applicant to a PEB or, therefore, to consider him for a medical discharge.

3.  However, it is evident that if the applicant had been referred to a PEB he would not have been determined physically unfit, the prerequisite for a medical discharge.  His EER’s clearly show that he was able to perform his prescribed duties as a first cook.

4.  The medical conditions, which manifested, or were incurred, subsequent to the applicant’s discharge are not service related and cannot be used as the basis for a medical discharge from the Army.  However, the worsening of his service related conditions, while not the basis to grant his request for a medical discharge from the Army, may be compensatable by the DVA based on that Department’s findings.

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

__gdp___  __eb____  __mvt___  DENY APPLICATION

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

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000718	
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.