MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 March 2000                   
	DOCKET NUMBER:   AR1999034739

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Roger Able		Member	
	Mr. James E. Anderholm		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 changed to a medical retirement.

APPLICANT STATES:  That at his last duty station, he was receiving physical therapy and treatment for his medical conditions up until the time he was discharged.  He asked about a medical discharge at the time of his separation but was told there was no difference in receiving a medical discharge from the Army and in receiving VA benefits.  He believes this not to be true.  He spent      7 years in the Army, doing his best to do the best job he could.  Because of his illness, his duties became restricted and regardless of his excellent performance ratings, he could not get promoted because he had a restrictive medical profile.  Supporting evidence is as listed on the DD Form 149.

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

He enlisted in the Regular Army on 13 April 1972.  He completed basic training and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist).  

In April 1976, the applicant was given a permanent physical profile for chronic sacro-iliitis.  

The applicant’s military medical records are not available.  On 20 June 1976, he underwent a retention physical examination.  The available Report of Medical History is not clearly legible but it does note that he had a history of chronic acute hepatitis, episode of diagnosed Reiter’s Syndrome (defined in Dorland’s Illustrated Medical Dictionary, 26th edition as the triad of nongonococcal urethritis, conjunctivitis, and arthritis, frequently with mucocutaneous lesions) and chronic low back syndrome with ankylosing spondylitic syndrome.  The available Report of Medical Examination is not clearly legible.  Item 70 is not checked to indicate whether or not he was qualified for retention.  Presumably the applicant was found qualified for retention.  

The applicant’s enlisted evaluation report (EER) for the period September 1977 through July 1978 included the comments “He performs well in all phases of surgical nursing” and “…has consistently performed his duties in an outstanding manner.”  His last EER was for the period August 1978 through March 1979 while he was assigned to Headquarters and Headquarters Company, 326th Engineer Battalion, Fort Campbell, KY where he provided medical coverage on 

combat engineer projects.  It included the comments “…has done an outstanding job in all tasks that were given to him” and “In spite of permanent profile and medical conditions he has performed in an outstanding manner both in the field and garrison.  I do recommend …for promotion and reenlistment.”
On 16 April 1979, the applicant was discharged upon completing his normal expiration term of service.  He was fully qualified for reenlistment at the time of his discharge.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  In pertinent part, it states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, 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.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that a soldier is fit.  Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

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.  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.

2.  The applicant’s medical conditions were certainly serious and unfortunate; however, the key to a finding of unfit for duty is that a soldier can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.   The evidence of record shows that at the time of his separation he performed his duties in an outstanding manner both in garrison and in the field.  There is no evidence to show his duties were restricted.  His last EER noted that his supervisors recommended him for promotion and he provides no evidence to show that someone else withheld recommending him for promotion because of his physical profile.  The Board concludes that he provides no evidence to overcome the presumption of fitness rule.

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___  ___ra___  __jea___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999034739	
SUFFIX		
RECON		
DATE BOARDED	20000323	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.