MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 March 2002
         DOCKET NUMBER: AR2001062434

         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Donald P. Hupman		Member
Mr. Thomas B. Redfern		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: That his honorable discharge be changed to show that he was separated by reason of physical disability.

APPLICANT STATES: That he was discharged 5 months early due to his medical profile and he believes that this would justify a separation by reason of physical disability. In support of his application, he submits a copy of his DD Form 214 (Report of Separation from Active Duty), a copy of his Standard Form 502 (Narrative Summary), dated 14 March 1974, and his medical profile.

EVIDENCE OF RECORD: The applicant's military records show he enlisted on 19 October 1972 as a hawk fire control crewman.

On 1 November 1973, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for failure to obey a lawful order from a commissioned officer. His punishment consisted of a forfeiture of pay, a reduction to the pay grade of E-2 (suspended), and 14 days restriction and extra duty.

The applicant provided a copy of his narrative summary, dated 14 March 1974, which shows that he was involved in an automobile accident in Germany on 19 January 1974, suffering posterior acetabular (large cup-shape cavity on the lateral surface of the thigh bone) displacement fracture, right hip; and mandible (the horse-shoe-shaped bone forming the lower jaw) fracture. His wounds were treated and he was air evacuated for disposition. He was diagnosed as having a fracture, dislocation, right hip, with no nerve or artery involvement. He was also diagnosed as having fractures, multiple, of mandible, no artery or nerve involvement.

He was assigned to the medical holding company at Fort Gordon, Georgia on
4 March 1974, as a patient, as indicated by his DA Form 20 (Enlisted Qualification Record).

On 18 March 1974, he was reassigned to the Letterman Army Medical Center, in Presidio of San Francisco as a patient.

His DA Form 20 (Enlisted Qualification Record) shows that he was AWOL from 23 May to 29 May 1974 (7 days).

On 3 June 1974, he was punished under Article 15, UCMJ, for being absent from his appointed place of duty. His punishment consisted of a forfeiture of pay and a reduction to the pay grade of E-3 (suspended).





On 3 June 1974, the applicant was given a DA Form 3349 (Medical Condition-Physical Profile), which states that his temporary profile was 113111. He was medically qualified for limited duty and listed with a defect of a fracture, dislocation of right hip.

The applicant underwent a separation medical examination on 4 June 1974, and was found qualified for separation with a 113111 physical profile. He was listed with defects of a fracture/dislocated right hip, multiple facial fractures, and multiple tooth avulsions (extractions). The doctor did not recommend the applicant for a Medical Evaluation Board (MEB) or any form of physical disability processing.

The facts and circumstances pertaining to the applicant’s discharge are not present in the available records. However, his DD Form 214 shows that on 5 June 1974, he was discharged under the provisions of Army Regulation 635-200, chapter 5-19, due to separation of enlisted members of medical holding detachments. He was furnished an Honorable Discharge Certificate. He had a total of 1 year, 7 months, and 10 days of creditable service and had 7 days of
lost time due to AWOL.

After his separation, the applicant filed a claim with the Veterans Administration
(VA) for his service connected disability. On 10 March 1976, he was granted a
20 percent disability rating for his right hip and a 10 percent disability rating for his jaw, for a combined disability rating of 30 percent for his service connected conditions.

Army Regulation 635-200, chapter 5, in effect at that time, set forth the basis authority for the separation of enlisted personnel for the convenience of the government. Separation under this chapter includes provisions for discharging soldiers for a variety of reasons. Paragraph 5-19 states that commanders are authorized to order separation for the convenience of the government of those
personnel who are assigned to medical holding detachments and who sign a
statement that they are willing to accept separation under this paragraph.
Enlisted personnel who are returned from a short tour to the US or their area of residence for hospitalization may be separated if they have less than 150 days remaining to their expiration of term of service (ETS) at the time of release from the medical facility.

Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to
possess a high level of medical fitness and, consequently, is medically fit for any military assignment. Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military
duty.

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/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reasons other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her 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.

Title 38, United States Code, section 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active service.

An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.

2. The type of separation directed and the reasons for that separation were appropriate considering all of the available facts of the case.

3. The evidence of record shows that the applicant was administered a separation medical examination on 4 June 1974, and was found qualified for separation with a physical profile of 113111. His previous injuries, fracture/
dislocated right hip, multiple facial fractures, and multiple tooth avulsions (extractions), were noted. There is no evidence in the applicant’s record to show that a MEB was considered or requested by competent medical authorities prior to his discharge.

4. The applicant’s service records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.

5. 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.

6. 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

__fe___ __dh___ __tr_____ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001062434
SUFFIX
RECON
DATE BOARDED	20020305
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19740605
DISCHARGE AUTHORITY	AR 635-200, 5-19
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 177
2.
3.
4.
5.
6.