MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 September 2001
         DOCKET NUMBER: AR2001059876

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		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 his separation be changed to a medical separation.

APPLICANT STATES: In effect, that the Army should be responsible for part of his injury for sending him to the Persian Gulf War with a (head) injury.

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

He enlisted in the Regular Army on 5 January 1973. He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 76Y (Armorer and Unit Supply Specialist). He apparently had ligament surgery on both knees around 1974. He was released from active duty on 15 December 1975 and transferred to the U. S. Army Reserve (USAR) Control Group (Reinforcement). He enlisted in the Army National Guard (ARNG) on 16 February 1976. He was discharged from the ARNG on 10 April 1978 and transferred back to the USAR Control Group (Reinforcement). He was discharged from the USAR on 15 February 1979.

Apparently, in 1984 the applicant had a boxing match in which he lost by a technical knockout. Subsequent to that, he had two weeks of persistent headaches which were treated with palliative medications. One day he became confused, passed out, and was in a coma. He was told he had a subdural hematoma, which was surgically evacuated. He apparently had no further headaches for six years.

On 14 September 1985, the applicant enlisted in the ARNG for training in MOS 64C (Motor Transport Operator). He extended several times. His last extension made his expiration term of service (ETS) 13 September 1991.

Apparently, in August 1990 while not in a pay status, a heavy machine part fell on the applicant’s right parietal region causing a depressed skull fracture with loss of consciousness. He was operated on by a neurosurgeon who put in a cranial plate.

On 27 September 1990, the applicant’s unit was ordered to active duty for deployment to Saudi Arabia. The applicant apparently informed his superiors that he had suffered a head injury; however, he was sent to Saudi Arabia anyway. While in Saudi Arabia, he began experiencing a severe frontal right parietal headache lasting approximately one hour and occurring about every three days.

The applicant provides an unsigned Statement of Medical Examination and Duty Status, DA Form 2137, dated 22 February 1991. The DA Form 2137 indicates the applicant was on a mission in December 1990 in Saudi Arabia when he was having trouble with the truck he was driving and hit his head on the door when he got out to take a look.

Apparently, on an unknown date the applicant was medically evacuated to Letterman Army Medical Center, Presidio of San Francisco, CA. The applicant provides an extract from a Medical Record Report, Narrative Summary, date typed 20 February 1991. It contains confusing information in that at the top it states “Date of Admission: 24 Oct 90” and “Date of Discharge: 21 Feb 91.” At the bottom left it states “LAMC PSF CA 94129.” This information contradicts the accident information on the DA Form 2137 in that he could not have been on a mission in December 1990 if he were hospitalized at that time.

The Defense Finance and Accounting Center – Indianapolis Center (DFAS-IN) was contacted to see if their records showed when he drew hostile fire pay to give some indication of when he served in Saudi Arabia. DFAS-IN stated that they had no records on the applicant.

The Narrative Summary indicates that after consultation with the Medical Evaluation Board (MEB) at Letterman Army Hospital, it was decided that since the applicant suffered his injury outside the line of duty and came to the attention of medical authorities only because of his persistent headaches subsequent to deployment to Saudi Arabia, he did not qualify for an MEB. The Narrative Summary noted that the applicant should not have been sent to Saudi Arabia and that he was not fit for deployment or retention due to the two head injuries he suffered while a civilian prior to his activation in September 1990.

On 22 February 1991, the applicant was released from active duty. Also on this date, the applicant’s unit was notified by the U. S. Army Medical Department Activity, Fort Ord, CA that he was determined to have a physical condition requiring evaluation by an MEB for presentation to the Physical Evaluation Board.

On 14 March 1991, the applicant was ordered to active duty for training at Letterman Army Medical Center, Presidio of San Francisco, CA for a medical evaluation. On 15 March 1991, he was given a temporary profile for post concussive syndrome with assignment limitations of no heavy lifting or strenuous exercise. No other results of this medical evaluation are available.

On 13 September 1991, the applicant was discharged from the ARNG upon completion of his ETS. He had completed a total of 12 years, 2 months, and 10 days of service for pay.

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An examination on or about April 2000 determined the applicant had arthralgia in the right knee and degenerative joint disease in his left knee. A physical examination noted that he was walking without aid, did not grimace while walking, and that his gait was coordinated and smooth.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. Under the laws governing the Army Physical Disability Evaluation system, soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits. One of the criteria is that the disability must have been incurred or aggravated while the soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

Title 38, U. S. 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.

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 this requirement.

2. The Board regrets that the applicant was ordered to active duty after he informed his superiors of his prior head injuries. The evidence of record indicates the applicant’s headache condition appears to have been precipitated by two separate incidents incurred while not on active duty – in 1984 when the applicant suffered headaches following a technical knockout during a boxing match and in August 1990 when he was injured (depressed skull fracture) when a heavy machine part fell on his head. These injuries pre-dated his order to active duty in September 1990. There is no evidence to show that his headaches suffered while in Saudi Arabia were the proximate result of or aggravated by performing military duties. Therefore, he would not have been entitled to receive disability retirement or severance pay benefits even if he had been found unfit to perform the duties of his office, grade, rank or rating.

3. 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

__lls___ __mhm___ __jtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059876
SUFFIX
RECON
DATE BOARDED	20010906
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.