MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 November 2001
         DOCKET NUMBER: AR2001052465

         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. Carl W. S. Chun		Director
Ms. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Mr. William D. Powers		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: In effect, that the Narrative Reason for Separation currently reflected on his Certificate of Release or Discharge (DD Form 214) be changed from disability “existed prior to service” to disability with an assigned disability rating.

APPLICANT STATES: That the decision made by the Physical Evaluation Board (PEB) that his condition existed prior to service was incorrect due to the board’s failure to review all evidence presented at the time of the board review. He states that the PEB incorrectly concluded that there was compelling evidence to support a finding that his condition beginning on or about 1988 predates his entry into active service and that he should be separated from the service without disability rating or disability benefits.

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

On 11 October 1984, he enlisted in the United States Army Reserve (USAR) for 8 years in the pay grade of E-1. On 17 July 1985, he enlisted in the Regular Army for 4 years and he successfully completed his training as a Pershing electronics repairer. He remained on active duty through a series of continuous reenlistments.

He was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) on 17 January 1992, under the provisions of Army Regulation 635-200, chapter 16-8 for the Convenience of the Government as a result of the fiscal year 1992 enlisted voluntary early transition program. He had completed 6 years, 6 months and 1 days of total active service.

The applicant enlisted in the Tennessee Army National Guard (TNARNG) on 17 November 1992 for 2 years in the pay grade of E-4. He was honorably discharged from the TNARNG on 16 November 1994, at the expiration of his term of service.

On 8 March 1996, the applicant enlisted in the Puerto Rico Army National Guard (PRARNG). He remained in the PRARNG for only 5 months and 24 days prior to being honorably discharged on 1 September 1996. He was transferred to the USAR Control Group (Reinforcement).

On 16 April 1997, while he was in the USAR, the applicant underwent a medical examination for the purpose of enlistment in the Army. During the examination the applicant indicated that he had never suffered from dizziness or fainting spells, depression or excessive worry, palpitation or pounding heart, periods of




unconsciousness or nerve trouble of any sort. He stated that his health was good and that he was not on any medication. He was determined to be medically qualified for enlistment in the Army. Accordingly, on 16 January 1998, the applicant enlisted in the Regular Army.

The applicant’s prior medical records are not available for review. However, a review of the available medical records show that on 30 March 1999, a Medical Evaluation Board (MEB) convened to evaluate the applicant’s medical conditions and defects. The MEB diagnosed his condition as syncope and near syncope, secondary to vasovagal episodes and anxiety. The MEB determined that the approximate date of origin for his condition was 1988; that his condition was incurred while he was entitled to base pay; and that his condition did not exist prior to service. The MEB recommended that he be referred to a Physical Evaluation Board (PEB).

A PEB convened on 15 April 1999 to determine the applicant’s fitness for retention on active duty. The PEB stated that, based on a review of the objective medical evidence of record, his medical and physical impairment prevents reasonable performance of duties required by grade and military specialty. The PEB further stated that there was compelling evidence to support a finding that the applicant’s condition existed prior to service because it began in 1988 which predated his entry into the service. The PEB also stated that there was no medical evidence to support a finding of permanent service aggravation. The PEB determined that the applicant was physically unfit for retention in the Army and the PEB recommended that he be separated from the service without a disability rating.

A review of the records fails to show that the applicant ever submitted an appeal to the rating decision made by the PEB.

Accordingly, on 20 June 1999, the applicant was honorably discharged under the provisions of Army Regulation 635-40, chapter 4-24B(4) based on a disability that existed prior to service. He had completed 7 years, 11 months and 5 days of total active service.

During the processing of this case a staff advisory opinion was obtained from the Department of the Army Review Board Agency’s Medical Advisor who opined that if the applicant suffered from symptoms which adversely affected relationships with others but which did not cause impairment of working ability, then the disability percentage would be 0 percent. The Medical Advisor further opined that the disability rating could go as high as 100 percent with totally incapacitating psychoneurotic symptoms. The Medical Advisor is of the opinion that the applicant was either 10 percent disabled or 0 percent disabled.

On 2 May 2001, the applicant was provided a copy of the advisory opinion for his information and use. To date, this Board has not received a response to the Advisory Opinion.

Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. Paragraph 5-11 specifically provides that soldiers who were not medically qualified under procurement medical fitness standards, when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty or active duty training or initial entry training will be separated. A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority with 6 months of the soldier’s initial entrance on active duty, that the condition would have permanently or temporarily disqualified the soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3. The characterization of service for soldiers separated under this provision of the regulation will normally be honorable, but will be uncharacterized if the soldier is in the entry level status.

Army Regulation 635-40, paragraph 3-2, specifies that a presumption will be made that a soldier was in sound physical and mental condition upon entering active service except for physical disabilities noted and recorded at the time of entry, and that any disease or injury discovered after a soldier entered active service, with the exception of congenital and hereditary conditions, that was not due to the member’s own misconduct, will be considered in line of duty. Paragraph 4-19b of this regulation states that a PEB may decide that a soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service. If the PEB determines that a soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service. The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation.

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. It appears that the actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.





2. On 15 April 1999, a PEB determined that the applicant’s disability was incurred on or about 1988. However, there is no evidence of record that show that the disability was unfitting at the time of his discharge in the 1992. Therefore, he was properly discharged for the Convenience of the Government as a result of the fiscal year 1992 Early Transition Program and the DD Form 214 that he was furnished at the time of his discharge appropriately reflects his narrative reason for separation.

3. The medical information provided by the applicant on 16 April 1997, at the time of his enlistment examination, did not include that he suffered from symptoms of syncope and near syncope, secondary to vasovagal episodes and anxiety. Therefore, he was found to be medically qualified for active duty service. The presumption of medical fitness at the time of enlistment only holds true if the enlistee honestly lists all of his or her medical history on the entry physical health questionnaire. Since the applicant concealed his medical condition, the presumption of fitness does not apply in his case.

4. The Board notes that the applicant was on active duty in 1988 and that his condition did not predate his first period of enlistment. However, it appears that he was aware that he suffered from syncope prior to his second period of enlistment (16 January 1998) and had he included his symptoms on his physical health questionnaire he would not have been found medically qualified for enlistment. Consequently, he was discharged as a result of a disability that existed prior to service and the DD Form 214 that he was furnished for this period of enlistment appropriately reflects that information.

5. The applicant’s prior service medical records are not available for review. However, notwithstanding the advisory opinion rendered by the Medical Advisor, the Board is convinced that the PEB’s decision to recommend that he be discharged without an assigned disability rating was made only after reviewing all of the pertinent documentation relating to his condition. Additionally, there is no evidence of record nor has the applicant submitted any evidence that shows that he appealed the decision made by the PEB at the time that it was rendered.

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 this 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

___rvo__ __wdp___ ___jpi ___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001052465
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/11/29
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	NC
REVIEW AUTHORITY
ISSUES 1. 177	108.0000
2. 179	108.0200
3.
4.
5.
6.