MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 
	

	BOARD DATE:            18 November 1998
	DOCKET NUMBER:   AC97-09594

	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. 



Member

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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:  Medical Retirement.

APPLICANT STATES:  That the Army erred in not providing him with a medical retirement based on the severity of his lower left leg.  He contends that he was placed on physical profiles while he was in the Army and his service medical records will support his contention.

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

On 20 December 1950, he enlisted in the Army for 4 years in the pay grade of 
E-1.  He successfully completed his training as a seaman.  He remained on active duty through a series of continuous enlistments.  

A review of the available medical records reveal that the applicant was seen by a physician on 8 August 1967, after he suffered a severe laceration to his left leg.  He was restricted to bed rest.  Although the exact date is unknown, skin grafting was performed on his lower left leg.

On 8 February 1968, applicant was seen by a physician for lower left leg pain. He was prescribed pain medication.

On 26 February 1968, after complaining of lower left leg pain, he was seen again by a physician and prescribed whirlpool treatments for 2 weeks.

On 8 March 1968, the applicant expressed to the attending physician that his leg felt better, however, he still experienced discomfort after standing on his feet for long periods of time.  

He was again seen by a physician at an orthopedic clinic on 11 March 1968, complaining of the same problem.  The attending physician determined that the applicant’s was well healed and recommended that he be returned to duty.  The physician further indicated that he may continue to take pain medication for his discomfort.

The applicant was seen at the orthopedic clinic again on 13 May 1968.  He expressed to the physician that he was experiencing pain from his boot and pain from having to run on his left leg.  Upon examination the physician determined that the applicant’s scars had healed and that he had full range of motion.  He was placed on a permanent P3 profile which included no prolonged standing, running or wearing of boots.

He was seen by a physician 22 November and on 2 December 1969 for lower leg pain.  The attending physician determined that his laceration was well healed, the x-rays were negative, the examination was negative, there was no heat and there was no redness.

On 5 January 1970, the applicant underwent a medical examination for the purpose of separation and he was found to be medically qualified for separation. Accordingly, he was honorably discharged on 23 January 1970, at the expiration of his term of service.  He had completed 15 years, 11 months, and 13 days of total active service.

On 1 February 1981, the Department of Veteran Affairs granted the applicant 30 percent service connection for laceration, left lower leg with parasthesia, skin grafted and 30 percent service connection for turburculosis, pulmonary, microscopic negative, advanced not specified for a combined disability rating of 50 percent.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the Medical Advisors , DA Review Boards Agency.  It contains no information, advice or recommendation which would constitute a basis for granting the applicant’s claim of medical retirement. 

Army Regulation 635-40, paragraph 2-2b as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties 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.

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 medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.

3.  Although the applicant was placed on a physical profile, his continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

4.  The fact that the VA, 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 physical 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

__jev ___  ___jh  ___  ___ tdh__  DENY APPLICATION




						Loren G. Harrell
						Director