MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 February 1999
         DOCKET NUMBER: AC97-06542
                                    AR1999021047

         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. Hubert S. Shaw, Jr.		Analyst

The following members, a quorum, were present:

Mr. Patrick Bogenberger		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
Mr. Gary F. Geraets		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)

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APPLICANT REQUESTS: Correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 7 March 1989, to show in section 10a that his retirement was based on disability which was the direct result of armed conflict or caused by an instrumentality of war and to show in section 10c that his disability was the result of a combat related injury as defined in 26 United States Code section 104.

APPLICANT STATES: That his medical retirement was in part a direct result of hitting a mine in Vietnam in 1968 as stated in the finding of the medical board at Ireland Army Hospital at Fort Knox, Kentucky, and his medical records at the Department of Veterans Affairs (DVA). He states that correction of this error will enable him to be competitive with his peers (civil service co-workers) by changing his “Veterans Preference for RIF [reduction in force] of SF 50B”.

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

The applicant entered active duty in June 1962 and completed over 27 years of service during which time he primarily served as an armor crewman and tank commander, as a platoon sergeant, and first sergeant of an armor company. He served one tour of duty in Vietnam from 31 August 1967 to 16 June 1968. On 23 June 1988, he was separated from active duty by reason of permanent physical disability with a 20 percent rating.

On 28 February 1989, a Medical Evaluation Board (MEBD) evaluated the applicant’s medical condition. An addendum to the MEBD was prepared on 28 February 1989 which stated that he “sustained an injury to his right elbow in 1968 while in an Armored Personnel Carrier. Specifically, the patient’s vehicle hit a mine which caused him to be thrown against his right elbow. This resulted in pain and swelling. Since then, the patient has sustained minor trauma from time to time, but in general noticed increasing pain in the right elbow aggravated by exercises and PT, such as pushups.”

The MEBD diagnosed the applicant with degenerative arthritis of the lumbar spine (diagnosis #1), sensorineural hearing loss (diagnosis #2) and traumatic arthritis of the right elbow (diagnosis #3). The MEBD determined that the degenerative arthritis of the lumbar spine and the traumatic arthritis were unfitting in accordance with Army Regulation 40-501, paragraphs 3-14a(3) and 3-14a(2), respectively. Both conditions were found to be not permanently aggravated by service. The MEBD recommended that the applicant be referred to a Physical Evaluation Board (PEB). The applicant indicated that he did not desire to continue on active duty, the findings of the MEBD were approved, and the applicant agreed with the MEBD’s findings and recommendations.
On 7 March 1989, a PEB considered the applicant’s case. The PEB determined that the degenerative arthritis of the lumbar spine and right elbow were unfitting and recommended a combined rating of 20 percent and permanent retirement from the service. MEBD diagnosis #2 (sensorineural hearing loss) was found not physically unfitting and was not rated. The Board also made the recommended finding in section 10a that the member’s retirement was “not based on disability resulting from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war incurred in the line of duty during a period of war defined by law” and in section 10c that the disability “did not result from a combat related injury as defined in 26 U.S.C. 104.” The applicant was counseled, concurred in the findings and recommendations of the PEB and waived formal hearing of his case. On 14 March 1989, the findings and recommendations of the PEB were approved.

The Board obtained a copy of the applicant’s service medical records and his DVA medical records. There is no record of treatment in Vietnam for an injury to his right elbow or his back as a result of a mine explosion or other incident. Standard Forms 600 (Chronological Record of Medical Care) show treatment for low back pain on 5 December 1962 resulting from an automobile accident on 4 December 1962 and on 14 March 1967 for treatment at Fort Benning, Georgia, for a back injury resulting from lifting with episodes dating back to 11 April 1966. The applicant’s DVA Rating Decision, dated 12 March 1990, indicates treatment for low back pain from 17 December 1965. These events occurred well before the applicant’s tour of duty in Vietnam.

There is no indication in medical examination records, physical profiles, or medical evaluations from 1962 regarding treatment of the right elbow resulting from injury, accident or combat action until the addendum to the MEBD was prepared. The applicant’s original DVA rating decision, dated 12 March 1990, states : “On Medical Board exam, he [the applicant] gave a history of injuries to the right elbow in 1968, when his track vehicle hit a mine, which caused him to be thrown against his right elbow.”

The applicant’s medical records contain the report of a Medical Board, dated 3 June 1985, which states that the applicant “has no previous serious injuries”, “he has never failed a PT test” and “the last one he passed was in June 1985”. This report found his medical condition as “Very good, with no major medical problems” and stated: “The Medical Board finds [the applicant] fit for duty.”

Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraphs 4-11 through 4-17, provide that an MEBD will recommend referral to a PEB those soldiers who do not meet medical retention standards outlined in Army Regulation 40-501; that attending medical personnel will not tell the soldier that he is medically or physically unfit for military service; that the MEBD Narrative Summary will not reflect a conclusion of unfitness; and that only a PEB, established to evaluate all cases of physical disability equitably for the soldier and the Army, will determine if a soldier is physically unfit.

Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment and retention and related policies and procedures. Chapter 3 of this regulation provides medical fitness standards for retention and separation to include retirement and describes the various medical conditions and defects which may render a member unfit for further military service. Paragraph 3-14 covers miscellaneous conditions of the extremities and describes arthritis due trauma and osteoarthritis as unfitting conditions.

Title 26, United States Code, section 104, provides that disability severance pay is exempt from Federal taxation if the pay is based on a disability resulting from a combat-related injury. Combat related is defined as an injury that was a direct result of armed conflict, incurred while engaged in extrahazardous service (flight, parachute or demolition duty) or incurred under conditions simulating war (live fire exercises).

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. A MEBD diagnosed the applicant with degenerative arthritis of the lumbar spine and traumatic arthritis of the right elbow. A PEB found the applicant was disabled as a result of degenerative arthritis of the lumbar spine and right elbow. The PEB recommended a combined rating of 20 percent and permanent retirement from the service. The Board also made recommended findings that the applicant’s retirement was not the result of armed conflict or caused by an instrumentality of war and that the disability did not result from a combat related injury as defined in 26 United States Code section 104.

2. The applicant indicated in his own hand that he was properly briefed on the findings and recommendations of the PEB and the legal rights pertaining thereto, that he concurred and that he waived a formal hearing of his case.

3. Contrary to the applicant’s contention that his disability retirement was a result of his armored personnel carrier hitting a mine in Vietnam in 1968, there is no medical evidence of record which shows the applicant was treated in Vietnam in 1968 for injuries or wounds resulting from the event described.

4. There is no evidence of record which shows the PEB was unjust or in error when it determined that the applicant’s retirement was “not based on disability resulting from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war incurred in the line of duty during a period of war defined by law” or that the disability “did not result from a combat related injury as defined in 26 U.S.C. 104.”

5. Notwithstanding the applicant’s contention that the Addendum to the MEBD and DVA records support his claim, the Board notes that a statement of medical history provided for use by a MEBD is made by the individual undergoing examination and that PEB determinations are made based on evidence of record. In this case, there is no evidence of record which shows the applicant’s medical condition resulted from an event in Vietnam which he described during his medical examination and which resulted in the Addendum to the MEBD. The Board further notes that the DVA in its rating decision did not find evidence of treatment of the applicant’s right elbow, but merely restated the information provided by the applicant during his Medical Board exam.

6. 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.

7. 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

PB_____ EJA_____ GFG____ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director