MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 25 June 2002
         DOCKET NUMBER: AR2002068537

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
Mr. Thomas Lanyi		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: Reconsideration of his request for a physical disability retirement.

APPLICANT STATES: That he did not request a review on 24 September 1969 as stated. He might have stated that his health was good on his Report of Medical History but he was not medically qualified to evaluate his medical fitness. With the head wound he sustained, he could not evaluate his mental or physical condition or know Army regulations and law and how they would pertain to his condition. Considering what he went through, he believed being alive was good health. At the time he separated, the competent medical authority who determined he was medically fit for separation was not a physician. His order was in opposition to the Medical Condition – Physical Profile Record, DA Form 8-274, signed by a Medical Corps captain, which stated on 7 May 1968, “The above individual is to report to a medical facility in one month for further physical profile evaluation or medical treatment and disposition.” These instructions would have placed him back at Walter Reed General Hospital on 6 June 1968; however, he was separated on 10 May 1968 before medical treatment was completed or a final evaluation made. The reference to his being a firefighter is not relevant to his case. What he had to endure both physically and mentally to compensate for his disabilities was physically painful and mentally frustrating. Only now, with proper medical care, medication, and the elimination of stress of trying to work that he is able to attain a level of comfort (yet never completely free from physical discomfort). His captain informed him a week before his death that he had written him up for an “in country” promotion to Staff Sergeant, E-6. The promotion did not follow him after his injury and his death. As supporting evidence he provides his Report of Transfer or Discharge, DD Form 214; a DA Form 8-274 dated 7 May 1968; a Clinical Record Consultation Sheet dated 27 November 1967; an 18 November 1993 letter from the U. S. Army and Joint Services Environmental Support Group; an extract from the operational report of the 1^st Cavalry Division for quarterly period ending 31 July 1967; two newspaper articles; and a 22 February 1999 Report of an Intellectual, Memory, and Neuropsychological Evaluation from a civilian doctor.

COUNSEL CONTENDS: That at the time the applicant separated he was not evaluated by a medical doctor or other medical authority. The DA Form 8-274 proves that the applicant’s combat wounds were not completely healed at the time he was separated in May 1968. If the Board has written proof that the applicant made a request for correction of his records in 1969, he would like to see it. The Clinical Record Narrative Summary dated 2 May 1968 counsel provides as supporting evidence indicates that the applicant should not have been operated on before one year from the date of his injury. This is proof that the Army only wanted him discharged despite having severe medical problems.

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NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 27 November 2001.

The Clinical Record Narrative Summary dated 2 May 1968 indicates that a left frontal cranioplasty was performed on the applicant on 12 April 1968 without difficulty. Postoperatively he had a satisfactory course with an excellent cosmetic effect from surgery. He was discharged to duty. Two weeks convalescent leave was recommended. He was to be given a “picket fence” (no assignment limitations) profile after one month on temporary limitation duty postoperative course.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, or rank. It states 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. Prior to November 1996, when a soldier was being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, created a presumption that a soldier was fit. Application of the rule did not mandate a finding of fit. The presumption was rebuttable and could be overcome when the preponderance of evidence established the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

Army Regulation 635-40 further states that a soldier whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization may be retained in the service, with his or her consent, until he or she has attained maximum hospital benefits.

Army Regulation 600-200, chapter 7, in effect at the time prescribed Army promotion and reduction policy. In pertinent part, it stated that temporary promotions of enlisted personnel to pay grades E-4 through E-6 were made against periodic temporary promotion quota allocations. A recommendation or concurrence from the unit commander was a requirement.

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. There was evidence of record to show that the Board considered a case on the applicant in 1969; however, as that case could not be located the 27 November 2001 case was done de novo.

2. The Board is cognizant that the applicant was not medically qualified to give a definitive medical opinion as to the state of his health.

3. The applicant was examined by a medical doctor prior to his separation. The Medical Corps captain who indicated on the 7 May 1968 DA Form 8-274 that the applicant was to report to a medical facility in one month is the same Medical Corps captain who discharged him to duty on 2 May 1968. The DA Form 8-274 indicated the applicant had only a temporary profile, had no medical defects, and had no assignment limitations. The regulation provides for the retention of a soldier to attain the maximum hospitalization benefit. However, the applicant was no longer hospitalized. He had no assignment limitations and only a temporary profile. There appears to have been no reason to retain him anymore than there would be for a soldier with a broken leg to be retained only because he was still in a cast.

4. The Board acknowledges that the Clinical Record Narrative Summary dated 2 May 1968 indicated that cranioplasties are not routinely done (not “never done”) until a minimum of one year from the time of injury has passed. The applicant was injured in July 1967. The examining physician indicated that the wound was well healed and the applicant had been discharged to duty since September 1967. The examining physician indicated the applicant should return around 1 May 1968 (10 months later) for a cranioplasty. The surgery was actually performed on 12 April 1968, only 3 weeks earlier than originally planned. It appears military medical authorities merely desired to offer the convenience of having the Army perform the surgery rather than wait the full year after the applicant had separated (which he would have done since he was performing military duties) and have the Department of Veterans Affairs perform the surgery.

5. The reference to the applicant being a firefighter is relevant to his case. The position of firefighter and infantryman are similar in that both the fireman and infantryman perform physically strenuous duties with regularly occurring periods of high stress. Both can be dangerous and life-threatening jobs. No matter what it cost the applicant to perform his duties as a firefighter for almost 20 years, the fact is he was able to do so. This is a strong indicator that, had he chosen to remain in the Army, he would have been able to continue to perform duties as an infantryman.

6. The applicant may have been recommended for promotion to Staff Sergeant; however, there is no evidence to show that his unit was given any promotion allocations against which he could have been promoted.

7. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

8. 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__ __EJA__ __TL___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002068537
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/06/25
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.