PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 15 July 1999
         DOCKET NUMBER: AR1997002277


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Loren G. Harrell		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. George D. Paxson		Chairperson
Ms. Jennifer L. Prater		Member
Mr. John Saputo		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his National Guard records be corrected to give him retirement points for attending Basic Airborne School so the back injury he received during the course will be service-connected.

3. The applicant defers to counsel. Counsel contends that the applicant’s records should indicate he was on active duty for training (ADT) for the period he was attending the Basic Airborne Course; that he should be awarded retirement points for that period; that his back injury and resulting disability should be presumed to have been service incurred or service aggravated; that he should be medically boarded and separated for disability or retired as a Private First Class, E-3 with full VA medical entitlements; that he receive all duty pay and entitlements since the date of his injury; and all other pay or entitlements to which he is entitled. Because of his Reserve Officer Training Command (ROTC) scholarship and pending separation from the Texas Army National Guard, he stopped drilling with his National Guard unit. Consequently, his National Guard records were not updated and do not reflect his graduation from the Basic Airborne School, his award of the Parachutist Badge or his retirement points for the period of service during Basic Airborne School. Supporting documentation is as listed in counsel’s statement.

4. The applicant’s military records show that he enlisted in the Texas Army National Guard on 21 April 1989 for 8 years. He was ordered to ADT 6 June – 27 July 1990 to attend advanced individual training and was awarded military occupational specialty 11B (Infantryman).

5. On 9 May 1991, the applicant was offered a 3-year Army ROTC scholarship. On 13 May 1991, he was authorized to travel at Government expense to attend Basic Airborne Training from 13 June – 5 July 1991. He completed the course on 5 July 1991 and was awarded the Parachutist Badge.

6. On 13 August 1991, the Third ROTC Region requested the applicant be evaluated for medical qualification subsequent to a complaint of left lower extremity pain secondary to a parachute landing fall.

7. On 26 August 1991, the applicant enlisted in the U. S. Army Reserve Control Group (ROTC). He was discharged from the Army National Guard of Texas and as a Reserve of the Army effective 1 September 1991 for the reason of enrollment in advanced ROTC or receipt of scholarship. Block 12 of the NGB Form 22 does not list the Basic Airborne Course and block 15 does not list the Parachutist Badge.

8. The applicant’s retirement history does not credit him with active duty points for the period he attended the Basic Airborne Course.

9. In October 1991, the applicant was diagnosed with “Typical case of herniated disc L5-S-1 with compression of the S1 nerve root on the left side.” The straight leg raising sign on the right at 45 degrees produced pain in the left buttock. The straight leg raising sign on the left side was positive at 20 degrees. In November 1991, the straight leg raising test was positive at 10 degrees on the left. Raising the right leg also caused severe pain.

10. After conservative treatment failed, the applicant was hospitalized on 3 August 1992 for surgery. He was discharged on 7 August 1992. His discharge summary states “…exhibits normal strength in the lower extremities bilaterally. He is free of his preoperative leg pain…” On 8 September 1992 an examination revealed “…Strength and sensation are intact…Straight-leg raising test can be carried to about 90 degrees on the right and 70 degrees on the left…”

11. On 14 December 1992, the applicant was determined to be medically disqualified for retention in the ROTC program. He was disenrolled on or about 25 January 1993.

12. Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty. Chapter 3 states that under the laws governing the Army Physical Disability Evaluation System, soldiers who sustain physically unfitting disabilities must meet certain line of duty criteria to be eligible to receive retirement and severance pay benefits, one of which is the disability must have been incurred or aggravated while the soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. The line of duty decision must be included in the official records of the case. Chapter 8 provides that soldiers of the reserve components are eligible for processing if they incurred a disability from an injury determined to be the proximate result of performing annual training (AT), active duty special work (ADSW), ADT, inactive duty training (IDT) or temporary tour of active duty (TTAD).

13. Chapter 103, Senior ROTC, of Title 10, U. S. Code, section 2107(g) states that in computing length of service for any purpose, an officer appointed under this section may not be credited with service either as a cadet or midshipman or concurrent enlisted service, other than concurrent enlisted service performed on or after August 1, 1979 as a member of the Selected Reserve (i.e., the Simultaneous Membership Program).

14. In the processing of this case, the applicant was requested to provide documentation to show that a line of duty investigation was completed or that some other official determination was made that his injuries occurred as a result of a parachute landing while he attended the Basic Airborne Course. Counsel requested three extensions. No further documentation was received by 13 July 1999.

CONCLUSIONS:

1. The orders which sent the applicant to Basic Airborne Training authorized him to travel at Government expense but they did not order him to AD or ADT. Although Title 10, U. S. Code, section 2107(g) is worded “…an officer appointed under this section…,” the Board concludes it was Congress’ intent to include all those whose intent it was to be appointed under section 2107. Since the applicant, although a concurrent member of the Army National Guard was not enrolled in the Simultaneous Membership Program, the law prohibits his period of attendance at Basic Airborne Training to be considered qualifying service for retirement.

2. The applicant has provided no evidence to show it was a parachute fall during Basic Airborne Training that caused the injury to his back.

3. The Board concludes that a government error occurred when his NGB Form 22 was prepared without annotating his attendance at Basic Airborne Training or the award of the Parachutist Badge.

4. In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1. That the applicant’s NGB Form 22 for the period ending 1 September 1991 be corrected by adding Basic Airborne Training, 3 weeks, 1991 to block 12 and by adding the Parachutist Badge to block 15.

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2. That so much of the application as is in excess of the foregoing be denied

BOARD VOTE:

__gdp___ __jlp___ __js____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           George D. Paxson
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR1997002277
SUFFIX
RECON
DATE BOARDED	19990715
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	135.02
2.	108.00
3.	100.07
4.	107.012
5.
6.