MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 30 AUGUST 2001
         DOCKET NUMBER: AR2001057759

         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. Raymond V. O’Connor		Chairperson
Mr. Christopher J. Prosser		Member
Ms. Linda D. Simmons		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, the applicant requests physical disability retirement or discharge.

APPLICANT STATES: That he should have received a complete physical examination before being discharged from the Army Reserves. A medical discharge would have been warranted if his completed medical history while on active duty and in the Individual Ready Reserves (IRR) had been accomplished. He encloses copies of VA rating decisions, and states that his medical conditions did not exist prior to his military service. He states that he does not understand how the VA can say that his disabilities are not service connected in view of his 15 years of active service and his Reserve service.

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

The applicant enlisted in the Army Reserve for 6 years on 16 May 1977. He was discharged from that component upon his enlistment in the Regular Army for 3 years on 5 July 1977. He served on continuous active duty until his discharge in 1992. The applicant served in various locations throughout the world, to include three tours of duty in Germany, Fort Benning, Georgia, Fort Bragg, North Carolina, Fort Lee, Virginia, Fort Bliss, Texas, and 7 months in Saudi Arabia. The applicant completed the Advanced NCO Course and attained the rank of Staff Sergeant. He has received three awards of the Army Commendation Medal, five awards of the Army Achievement Medal, five awards of the Army Good Conduct Medal, and the Southwest Asia Service Medal with three bronze service stars, among others.

The applicant’s medical records show that he was treated for a scalp condition in June 1978, a lacerated thumb in July 1978, pain in the right foot in May 1980, throat problems in June 1981 for which his condition was diagnosed as tonsillitis, an astigmatism on 7 July 1981, allergies in July 1984 and in March 1987, chest pain on 31 July 1985, and high blood pressure and hypertension in November 1988. A 29 November 1988 medical record shows that the applicant had borderline hypertension for the past six years and that he was under treatment for high blood pressure. Dietary services was requested to evaluate and counsel on low salt, low cholesterol diet and assist in weight loss. He was treated for abdominal pain on 13 July 1989.

A 9 November 1988 report of medical examination shows that the applicant had left foot pain, that he was overweight, and that he had elevated blood pressure. In the report of medical history that he furnished for the examination, the applicant stated that he was in good health and not on any medication.

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A 1 June 1992 memorandum indicates that the applicant’s request for voluntary early transition program with VSI (Voluntary Separation Incentive) had been approved with a separation date of 21 August 1992.

On 19 June 1992 the applicant stated that he did not desire a separation medical examination.

The applicant was discharged on 21 August 1992 at Fort Bliss, under the provisions of the FY92 enlisted voluntary early transition program. He had 15 years, 1 month, and 17 days of service. His DD Form 214 shows that he was to receive a VSI payment of $7,658.06 for 30 years.

The applicant enlisted in the Army Reserve for 3 years on 22 August 1992.

The applicant was discharged from the Army Reserve on 27 February 1996.

A DA Form 5500-R, Body Fat Content Worksheet (Male), dated 12 March 1997, (after he was discharged) shows that he was not in compliance with Army weight standards. In a statement prepared by the applicant on that same date, he stated that he should have received two 1 year extensions due to his weight. He stated that his medical records would show high blood pressure and sleeping disorder. He stated that if he did not receive two 1 year extensions he would be forced to see his Congressman.

In a 25 April 1997 letter to an individual in the Army Reserve Center, a physician with the Collins Medical Associates in Connecticut stated that the applicant was being treated for sleep apnea and hypertension.

In a 17 July 1996 rating decision the VA determined that the applicant’s claim for service connection for hypertension, a heart condition, a sleep disorder, a skin condition, loss of use of the hands due to cramping, a lung condition, loss of vision, loss of hair, blackouts, loss of memory, depression, a bilateral leg condition, a bilateral knee condition, and a bilateral ankle condition was not well grounded. The VA indicated that there was no record of treatment in service for those conditions, but also indicated that the applicant’s service medical records were not available.

In a 3 March 1998 decision on the applicant’s appeal, the VA stated that his claims for service connection for the above conditions were not well grounded.

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On 8 June 1999 the VA denied the applicant’s claim for service connection for high blood pressure and fatigue, in addition to the above listed conditions. The VA again indicated that no service medical records were available for review.

A 20 September 1999 polysomnography indicates that the applicant had a severe obstructive sleep apnea with arterial oxygen desaturation and sleep fragmentation improved with initiation of nasal CPAP (continuous positive airway pressure).

On 4 February 2000 the VA again denied the applicant’s claim for service connected disabilities.

MILPER message 92-85, dated 7 January 1992, provides implementing instructions for the enlisted voluntary incentive programs in support of Army drawdown. Two incentives were offered, the VSI and the SSB. Each incentive required affiliation with the Ready Reserve.

A soldier approved for separation under the VSI program is paid an amount equal of 2.5 percent of his monthly basic pay on the date separated and enlisted in the Ready Reserve, multiplied by twelve and multiplied again by his years of service. A soldier will be paid in annual installments commencing on his departure date from active duty, and on each anniversary date thereafter for twice the number of years of active duty, provided the soldier continues to serve in the Ready Reserve. VSI annual payments will be discontinued if the member is separated from the Ready Reserve, except under certain conditions, i.e., the soldier’s death.

Army Regulation 40-501 provides information on medical fitness standards for enlistment, retention, and related policies and procedures. Chapter 9 sets basic policies and procedures for medical examinations. It covers those examinations used to medically qualify individuals for entrance into and retention in the Army Reserve. Normally, Reservists who do not meet the fitness standards will be transferred to the Retired Reserve or discharged. They will be transferred to the Retired Reserve only if eligible and if they apply for it.

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.

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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.

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. Notwithstanding the applicant’s contentions, there is no evidence that his discharge from the active Army in 1992 or his discharge from the Army Reserve in 1996 was unfair or unjust. The applicant’s discharge in 1992 was a result of his own request under the provisions of the enlisted voluntary incentive program. He stated that he did not want a separation physical examination and 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. He enlisted in the Army Reserves in order to receive the benefits of that program.

2. The reason for the applicant’s discharge from the Army Reserve in 1996 is unknown. However, regularity is presumed. There is no evidence nor has the applicant provided any to overcome that presumption. The weight control form and the applicant’s correspondence in 1997 subsequent to his 1996 discharge are unexplainable.

3. The applicant’s contention that he would have received a medical discharge had his complete medical records been reviewed has no basis in fact. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

4. 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.

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.

NOTE: The Army Review Boards Agency in St. Louis will be requested to forward the applicant’s medical records to the appropriate VA regional office.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__RVO__ __CJP __ __LDS __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001057759
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010830
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.