MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:     
                                          


	BOARD DATE:            12 May 1999                  
	DOCKET NUMBER:   AC96-07511
				   AR1999025607

	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.




	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, physical disability retirement or separation.

APPLICANT STATES:  That (the Army) failed to include all of his limitations, therefore there is no evidence that he was cured in the service.  That no medical expert was called and no effort was made to clarify his illness.  That VA records stated that the bronchitis he had in the service was resolved but he had asthma all his life, which is untrue since he still is suffering from the same thing.

COUNSEL CONTENDS:  In effect, that a medical expert should be called to clarify the issues of the onset of the applicant’s problems and his limitations as noted in a doctor’s report, including a clinical impression of “history of chronic insomnia and sleep deprivation and the need of daytime to sleep secondary with chronic lung disease/asthma.”

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

He was inducted on 28 July 1964 and, after training, was assigned to Fort Dix, New Jersey.  In November 1965 he was reassigned to Vietnam, where he served until he was released from active duty.  

A 21 June 1966 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1.  In the report of medical history the applicant furnished for the examination, he indicated that he previously had diphtheria, mumps, severe tooth and gum trouble, hay fever, asthma, and cramps in his legs.  He stated that the condition of his health was “good.”

The applicant was separated early on 22 June 1966 as an overseas returnee.  He had 1 year, 10 months and 25 days of creditable service.

A Rating Decision from the Department of Veterans Affairs, dated 9 November 1992, denied the applicant’s claim of service connected disability for asthma in that he had bronchitis in service which resolved with treatment and was cured, with no notice of any lung condition diagnosed or under treatment on the separation examination.  He was rated at 30 percent for asthma and 20 percent for hypertension for a combined total of 40 percent non-service connected disability.

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

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

Paragraph 3-2b(1) of the regulation provides 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.

Paragraph 3-2b(2) further provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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 38, US Code, sections 310 and 331, permits the VA to award compensation for disabilities which it determines were incurred in or aggravated by active military service.

On 21 September 1998 the Department of the Army Review Board Agency Medical Advisor (a medical expert) opined (COPY ATTACHED) that the applicant’s separation physical examination was verified by a physician at the time of the applicant’s separation from the Army.  The question of “asthma” or, perhaps more exactly, reactive airway disease, was addressed.  The applicant had no disabling medical condition at the time of his separation from the Army.

On 26 February 1999 the applicant was given the opportunity to rebut the foregoing advisory opinion.  He failed to respond within the established 30-day time limit afforded him by this agency.

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, it is concluded:



1.  The applicant was provided a complete separation physical examination on 
21 June 1966 and was found to be medically qualified for separation.

2.  The applicant’s military service was not interrupted by physical disability.  Notwithstanding the presence, or possible presence, of various medical conditions, there is no evidence of record, nor has the applicant or his attorney provided sufficient evidence, which would indicate that he suffered from any medical condition of such severity that he was rendered unable to reasonably perform the duties of his office, rank, grade or rating.

3. 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.

4.  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

________  ________  ________  DENY APPLICATION




						Loren G. Harrell
						Director



INDEX

CASE ID
AC96-07511/AR1999025607
SUFFIX

RECON

DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
145.00
2.
110.00
3.
142.00
4.

5.

6.