MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 28 AUGUST 2001
         DOCKET NUMBER: AR2001057266

         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Richard T. Dunbar		Member
Mr. Donald P. Hupman, Jr.		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)

---

APPLICANT REQUESTS: In effect, physical disability retirement or discharge in lieu of the general discharge that he received. He also requests that his reduction in grade be revoked and he be restored to the grade of E-4 with all due pay and allowances.

APPLICANT STATES: That his records show that he did have a disability and that he should have been medically discharged. He states that he complained that he was having pain and was not able to perform his duty. After 13 years of treatment, he was found to have nerve damage.

COUNSEL CONTENDS: That the applicant should have been medically discharged because of his inability to perform his daily responsibilities. He states that the records establish that he was suffering from a service related disability, which was ignored. He states that the applicant’s rank should be restored.

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

The applicant enlisted in the Army Reserve Delayed Enlistment Program (DEP) for 6 years on 13 June 1980. He enlisted in the Regular Army for three years on 22 July 1980 and was released from active duty upon his separation date (ETS) on 13 July 1983, and transferred to a Reserve unit in St. Louis, Missouri. He had 2 years, 11 months, and 22 days of service. His service was honorable.

On 15 November 1983 the applicant was assigned to a maintenance detachment in St. Louis. On 8 February 1985 he was assigned to a Reserve unit in California. The applicant’s Reserve unit, a transportation company in California, notified him on 8 October 1985 that he was an unsatisfactory participant in unit training assemblies and would be transferred to the IRR (Individual Ready Reserve). However, an order published by a Reserve command in California shows that he was transferred to a supply company at Richards-Gebaur Air Force Base in Missouri on 1 January 1986. He was discharged from the Army Reserve on 22 October 1986. His discharge was honorable.

Notwithstanding the discharge date from the Army Reserve, enlistment records show that he enlisted in the Army National Guard for 6 years on 1 July 1986. He was assigned to the 220^th Engineer Company in Jefferson Barracks, Missouri. In March 1987 the applicant was ordered to full time training duty (FTTD) to attend a machinist course at Aberdeen Proving Ground in Maryland.

A 17 June 1987 medical record shows that the applicant was a passenger in an automobile that ran off the road and flipped over. He injured his neck and complained of neck pain, right forehead pain, and right knee pain. He was treated at Kimbrough Army Hospital at Fort Meade, Maryland and placed on
convalescent leave. He was readmitted to the hospital on 2 July and placed in cervical traction. A CAT scan on 24 July showed a compression fracture. He improved and was scheduled for discharge on 7 August 1987. A line of duty report (DA Form 2173) shows that his injury was determined to be in line of duty.

A 14 September 1987 medical record shows that an examination of the cervical spine revealed a widening of C1-C2, C4-C5 interspinous spaces, most likely secondary to ligament injury. That record indicated that there was no evidence of fracture or bone destruction and that the intervertebral spaces were normal. It indicated that there was no evidence of fracture or bone destruction of the right hip and that articulations were normal. There was no evidence of fracture or bone destruction of the left elbow.

Medical records in late 1987 show that the applicant was treated on various occasions for neck and shoulder pain.

A medical report prepared at the Army hospital at Fort Leonard Wood, Missouri, shows that the applicant was admitted to the hospital on 14 January 1988 after being examined for possible medical board evaluation because of complaints of neck and back pain since 14 June 1987 [the date of the automobile accident]. He was scheduled for an evaluation for an Medical Evaluation Board (MEB) on 14 January; however, on 7 January 1988, he was involved in another motor vehicle accident, and as a result, the applicant stated that he had pain beneath his shoulder blades immediately after the accident that wasn’t there before, and that his back pain was now worse. The examining physician recounted the history of his present illness to include his symptoms, examined him and reviewed the laboratory data. The applicant underwent physical therapy during his hospital stay. He was able to move his neck and back more freely without pain and was started on pushups and situps. On 18 January 1988 he felt much improved with decreased pain. He had good motion in his back and had mild limitation of neck motion with muscle tightness. His condition was diagnosed as recurrent sprain/strain of the neck and healed compression fracture of the vertebral body. He was discharged from the hospital on 19 January 1988.

On 21 February 1988 the applicant was ordered to report to the Army hospital on 23 February 1988 at Fort Leonard Wood to determine his fitness for duty. On 24 February 1988 the Medical Department Activity at Fort Leonard Wood informed the applicant’s commanding officer that the applicant had been examined and was found fit for duty with no restrictions or limitations.

The applicant was admitted to the hospital at Fort Leonard Wood on 18 May 1988 with a diagnosis of rhabdomyolysis (disintegration or dissolution of muscle), mild, resolved, and severe periodontitis (gum disease), and recurrent,
intense back pain after a recent physical training test. He was placed on bed rest and oral fluids. Physiotherapy was initiated and his diet was advanced. He was seen on dental consultation. He made good progress during his hospitalization. His condition at discharge on 25 May 1988 was diagnosed as rhabdomyolysis, mild, resolving; severe periodontitis; obesity, mild; and a past history of motor vehicle accidents with compression fracture of C5 vertebral body, no function impairment. He was issued a temporary profile of 1 1 3 1 1 1.
His injury was determined to be in line of duty; however, a formal line of duty investigation was requested. There is no evidence one was conducted.

A General Counseling Form (DA Form 4856) shows that as a result of a urinalysis test conducted on 7 January 1989 the applicant tested positive for marijuana. That form indicated that was not the first time the applicant had been identified as a user of illegal drugs since 1 July 1983. The applicant was “flagged” effective on 8 May 1989 because of the positive urinalysis test.

Medical statements in the Spring of 1989 prepared by the applicant’s physician show that the applicant had been unable to return to work because of low back pain syndrome. A 25 April 1989 letter to the applicant from his employer informed him that his employment had been terminated because he had been absent for three working days without properly notifying management.

On 2 May 1989 the applicant was treated for muscle spasms in his lower back.

On 23 May 1989 he was reduced to pay grade E-3 for inefficiency.

On 22 August 1989 the applicant’s commanding officer requested that the applicant’s health record be reviewed to determine whether a physical profile be issued. He stated that the applicant had not met mandatory requirements due to recurring health problems (no physical fitness test taken, excessive absence from drills). There is no evidence that such a review was conducted.

On 31 August 1989 the applicant was seen because of low back pain and also neck and shoulder pain. The applicant’s condition was diagnosed as possible scoliosis. The medical record indicated that an MRI in February 1989 showed no evidence of a slipped disc.

Records of the 220^th Engineer Company show that numerous attempts were made to contact the applicant because of his nonparticipation in unit training assemblies, to no avail. On 1 September 1989 he was discharged from the Army National Guard because of unsatisfactory participation in unit training assemblies, and transferred to the Army Reserve Control Group (IRR). He received a general discharge.

Medical records show that he was seen and treated for low back pain in November and December 1989.

On 12 May 1992 the applicant received a diploma for having satisfactorily completed a course in air conditioning, refrigeration, and heating.
A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) shows that on 21 July 1992 the applicant extended for one year his four year enlistment which began on 1 July 1988. His unit of assignment on that form is shown as the Army Reserve Control Group (Reinforcement) at St. Louis.

On 6 July 1993 the applicant was discharged from the Army Reserve. His discharge was honorable.

On 17 November 1993 he completed training in a heating and air conditioning packaged rooftop units 3 – 5 ton.

The applicant’s resume in applying for a job within the fields of heating, cooling, and refrigeration shows that he worked as a maintenance person for McDonald’s Corporation, Inc. for one year in 1991 and his duties include maintaining the heating and cooling roof top units; that he worked as a school custodian from December of 1991 to February of 1994; and that he worked from February 1994 to the present time [the resume is undated] as a pipefitter installing, maintaining, and repairing different types of pipe systems. He listed his skills, which included trouble shooting and installing domestic and commercial refrigeration, air conditioning, and heating systems; wiring and trouble shooting furnaces, central air conditioners and electronic air cleaners; and soldering, brazing, and welding.

In January 1999 the applicant underwent examinations and tests conducted at the VA Medical Center in St. Louis. Consequently, on 12 February 1999 the VA awarded the applicant a 20 percent service connected disability rating for low back strain, effective in March 1998; and increased from 10 to 20 percent his disability rating for residuals, compression fracture, cervical spine, with cervical neuralgia, also effective in March 1998. His combined rating was 40 percent.

In April and May 1999 the applicant again was examined. A VA rating decision of 8 July 1999 shows a 30 percent disability rating for residuals, compression fracture, cervical spine with cervical neuralgia; and a 20 percent rating for low back strain. His combined rating was still 40 percent.

A 21 April 2000 decision by the Board of Veterans’ Appeals increased the applicant’s service connected disability rating for residuals, compression fracture, cervical spine with cervical neuralgia, to 40 percent.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
Army Regulation 40-501 provides, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for medical evaluation boards, convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status. A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3. If the Medical Evaluation Board (MEB) determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a Physical Evaluation Board (PEB).

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

Army Regulation 635-40, paragraph 3-2b states in pertinent part 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.

That paragraph goes on to say 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.

Chapter 8 of that regulation applies to members of the Reserve components. Paragraph 8-6 states that when a commander believes that a soldier not on extended active duty is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability, the commander will refer the soldier for medical evaluation.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

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. The applicant underwent treatment for his injuries on various occasions in 1987 and 1988. He was admitted to the hospital in January 1988, evaluated, and returned to duty. Apparently competent medical authority determined that a MEB was unnecessary. On 24 February 1988 his commanding officer was notified that the applicant was found fit for duty with no restrictions or limitations.

2. In May 1988 he was diagnosed with a condition of a compression fracture of the C5 vertebral body; however, with no functional impairment. Thereafter, he was seen and treated at various times for his low back pain. His National Guard unit reduced him for inefficiency, and in September 1989 he was discharged because of unsatisfactory participation. Nonetheless, he apparently entered the Army Reserves prior to his discharge from the National Guard, and even extended his Reserve enlistment for one year in July 1992. He received an honorable discharge a year later. His records show that he worked at various manual labor type jobs both before and after his discharge in 1992.

3. The applicant himself apparently felt that he could perform his duties as evidenced by his enlistment in the Army Reserves for four years in 1988, followed by his one year extension of his enlistment in 1992. The applicant's 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 award of VA compensation does not mandate disability retirement or separation from the Army. The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation. The VA is not required to determine fitness for duty at the time of separation. The Army must find a member physically unfit before he can be medically retired or separated.

5. The VA is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. Consequently, due to the two concepts involved, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency.

6. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

7. Absent evidence to the contrary, it is presumed that the applicant’s reduction in grade was proper and in accordance with applicable regulations in effect at that time. The applicant has not submitted any evidence to show that his reduction in grade was unjust or unfair.

8. Neither the applicant nor counsel has submitted probative evidence or a convincing argument in support of his request.

9. 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 that requirement.

10. 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

__JNS __ __RTD __ __DPH__ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001057266
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010828
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.	177
3.
4.
5.
6.