MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 January 1999                  
	DOCKET NUMBER:   AC97-11352
				   AR1999015916 
	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. Loren G. Harrell		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Robert W. Garrett		Member	
	Ms. Deborah S. Jacobs		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 essence, that his honorable discharge from active duty on 12 September l949 be changed to a medical discharge. 

APPLICANT STATES:  In essence, that he had Tuberculosis (TB) and was in the hospital for 2l months prior to entry into the service and again shortly after he was discharged from active duty.  

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from alternate sources, to include Department of Veteran Affairs (DVA) records.

The evidence available shows that he had prior honorable enlisted service in the United States Navy Reserve (not on active duty) from 29 July l947 through 
12 September l948.  On 13 September l948, he enlisted in the Army of the United States (AUS) for l year.  His entrance medical examination was without notation of any medical problems, except for defective eye sight correctable to 20/20.   

He was trained as a Heavy Weapons Infantryman and the highest rank he held was private first class.  On 12 September l949, he was honorably released from active duty in the AUS and was transferred to the Enlisted Reserve Corps (ERC) for 6 years service.  His character and efficiency ratings were excellent and he had no lost time.  His medical examination, conducted on l0 September l949 at the time of separation from active duty, was without notation of any medical problems and he was found fit for separation.  On 20 November l952, he was honorably discharged from the ERC.

The applicant’s DVA records show that he began examination by state of Oregon medical officials with suspected TB in November l949.  He was hospitalized shortly thereafter in early l950 at a state TB hospital, and received initial treatment for 10 months.  On 5 February l953, the applicant received a 
100 percent disability rating from the DVA for Tuberculosis Pulmonary, Chronic (TPC), far advanced, bilateral and acne vulgaris.  Both conditions were determined to have existed prior to entry on active duty and were not service aggravated.  

Subsequent to this period of hospitalization and treatment, he has undergone regular examinations, tests and his disability ratings have been adjusted by the DVA.  He currently is rated as l00 percent disabled.

In connection with his application, the Medical Advisor to this Board, opined (COPY ATTACHED), in essence, that his enlistment and separation medical examinations showed no disqualifying conditions.  Based on his examination by the DVA in late l949 for far advanced TB, it is obvious that the applicant had active TB while serving on active duty and most likely had it when he entered on active duty.  

The United States Army Physical Disability Agency (USAPDA) has reviewed the case and has opined (COPY ATTACHED) essentially, that the applicant has failed to justify the delay in making application to this Board (48 years later).  Further, there is no evidence that the applicant was physically disabled or unfit while on active duty.  His entrance and separation medical examinations failed to show any disabling conditions.  In fact, it would appear he had the condition prior to entrance on active duty.  As such, in conformance with Army regulations then in effect, and currently in effect there is no basis to find that the applicant was physically unfit while on active duty from September l948 to September 1949.
The USAPDA recommends disapproval of the application.  

Both advisory opinions were referred to the applicant for comment.  He replied (COPY ATTACHED), essentially that he was unaware of this Board and the Board’s 3-year statute of limitations.  Further, he discusses various aspects of his medical treatment for TB in late l949 and the early l950’s.  He further states that he was hospitalized and underwent treatment while still on active duty for respiratory problems.  He is convinced that his condition developed while on active duty.  

Title l0, United States Code, at 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 38, United States Code, section 3l0 and 33l, permits the DVA to award compensation for a medical condition(s) which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.

Army Regulation 40-501, at paragraph 3-3b(1), as amended, as well as earlier versions of that regulation, provide that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  Notwithstanding the delay in the applicant’s submission of his case for consideration by the Board, well beyond the 3-year statute of limitations, the Board has carefully reviewed the application and finds no evidence that he was unfit to perform his military duties while on active duty.  He was found medically fit for separation.  

3.  These conclusions are supported by the advisory opinions from the Board’s medical advisor and from the USAPDA.  

4.   The fact that the DVA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish unfitness for Department of the Army purposes.

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

__JH__ _  _  RWG      _ DSJ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-11352/AR199901596	
SUFFIX		
RECON		
DATE BOARDED	19990120	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Loren G. Harrell	
ISSUES         1.	110.02	
2.	108.00	
3.		
4.		
5.		
6.