MEMORANDUM OF CONSIDERATION


      IN THE CASE OF:


      BOARD DATE:            13 FEBRUARY 2003
      DOCKET NUMBER:   AR2002076195

      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, Jr.        |    |Chairperson         |
|     |Ms. Gail J. Wire                    |    |Member              |
|     |Mr. Robert J. Osborn II             |    |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:  Physical disability retirement or separation.  He also
requests that all documents pertaining to his discharge from the Army with
a general discharge be expunged from his records.

APPLICANT STATES:  The applicant made no statement but deferred to his
counsel.

COUNSEL CONTENDS:  That the applicant should have been medically discharged
in January of 2001.  He was found fit for duty only because he had been
found guilty of assault and battery at a court-martial, which did not
dictate a bad conduct discharge.  Two years later and four months after
being found fit for duty, he was separated for misconduct associated with
the court-martial.

Between the time of his court-martial conviction and the administrative
board proceedings he underwent a medical evaluation board (MEB).  He was
placed on a P-3 profile, with the physician remarking that the applicant
was unable to perform duties required by his specialty and that he should
be chaptered out of the Army.

Medical summaries show that the applicant had various unfitting conditions.
 The Brigade surgeon determined that the applicant did not meet retention
standards.

After receiving information requested by the Physical Evaluation Board
(PEB) concerning the applicant’s reduction in grade and bar to
reenlistment, the PEB met and determined that the applicant was fit for
duty.  His appeal to that determination was denied.  The finding of fit for
duty was clearly improper, and was based not on the applicant’s medical
condition, but because of his court-martial and future administrative
separation board.  The denial of his appeal occurred on 12 March 2001.  The
separation board met in June 2001.

The finding of fit by the PEB was improper.  The applicant’s condition was
serious, the orthopaedic narrative summary alone warranting a medical
separation.  Additionally, the applicant had an altered gait due to his
foot problems, degenerative disc disease in the cervical spine with
radiculitis and knee problems, in addition to his positional vertigo.  He
should have been separated with at least a 10 percent disability rating,
and perhaps retired with a 30 percent rating.

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

The applicant entered on active duty in October 1990 and remained on
continuous active duty until his discharge in 2001, attaining the rank of
staff sergeant.  The applicant has served in numerous locations throughout
the world,
to include Fort Sill, Oklahoma, Germany, Fort Benning, Georgia, Alaska, and
Italy.  He has a master of science degree from the University of Mexico,
has attended numerous military courses, to include the basic NCO course and
the jumpmaster course.  His awards include the Army Commendation Medal,
four awards of the Army Achievement Medal, the Senior Parachutist Badge,
and two awards of the Army Good Conduct Medal.  He was awarded the Senior
Parachutist Badge on 4 February 1998.  The applicant’s NCO Evaluation
Reports from October 1994 through January 1999 have been excellent, with
his raters and senior raters indicating that the applicant was either fully
capable or among the best in terms of potential for promotion and service
in positions of greater responsibility.  Those reports show that he was
physically fit and that he passed the Army physical fitness tests.  His
report for the period October 1998 through January 1999 show that his
rating officials considered him among the best, that he passed the Army
physical fitness test in December 1998, and that his rating officials
stated that he should be promoted at the next opportunity.  His last
assignment prior to his discharge was with an artillery battery of an
airborne unit in Italy.

The applicant was flagged on 14 January 1999.

General Court-Martial Order Number 4, dated 3 August 1999, shows that the
applicant was found guilty of assault consummated with battery that he
committed on 14 January 1999.  He was sentenced to be reduced to the grade
of Private E1 and to be confined for 60 days.  The sentence was adjudged on
       27 April 1999, and subsequently approved by the convening authority.

A 4 January 2000 Medical board evaluation summary consultation concerning
the applicant’s nasal airway obstruction, congestion, and loud snoring,
prepared for a main Medical Evaluation Board Summary, indicates that the
applicant suffered from mild to moderate nasal valve collapse.  The
examining physician stated, however, that she did not feel that the nasal
valve collapse created a limitation of duty, and that his duty did not
suffer because of this medical condition.  She stated that this was not a
condition for which outpatients were typically referred for a MEB.  She
stated that she submitted the summary only in support of the applicant’s
overall package in evaluation of his overall health when he meets the MEB.

A 26 January 2000 medical board evaluation summary consultation from an
orthopedic physician shows the applicant reported several problems
including neck and low back pain for approximately six to seven years.
Additionally, he complained of pain in his right knee and chronic
headaches, and reported
intermittent patchy areas of decreased sensation in his upper and lower
extremities.  He reported that his knee pain had not improved with physical
therapy and had become worse.  His neck and low back pain had not changed.
He did report that he had one episode of bowel and bladder incontinence
approximately 2 to 3 weeks ago.  The applicant’s condition was diagnosed as
degenerative disc disease of the cervical spine at C5-6 and C6-7 with
bilateral radiculitis at C6 – the condition did not meet medical retention
standards; positional vertigo, probable positional vertebral artery
insufficiency, potentially very serious as it could result in a stroke –
the condition did not meet medical retention standards; persistent pain in
the right knee after treatment for Osgood-Schlatter disease, the symptoms
being consistent with chondromalacia patella and patellofemoral pain
syndrome – the condition did not meet medical retention standards; and low
back pain without evidence of degenerative disc disease or herniation – the
condition met medical retention standards.

An undated podiatric consultation shows that the applicant had four
surgeries documented on the second toe of his left foot, and despite
definite treatment surgically, continued to have callus and forefoot pain
in his boots and shoes.  He had been seen in the clinic numerous times,
many times without his medical records, which are somewhat incomplete.  The
examining physician stated, however, that the applicant had been on profile
for his feet since 1998.  He stated that on a primary care examination in
1990 the applicant was noted to have pes planus which preceded training,
plantar fasciitis and a corn on his left third toe.  He was seen
sporadically for painful corns in September 1992.  It appeared that he had
surgery on his left second toe in 1993, surgery again on his left third
toe, and in October 1993 second toe surgery.  He underwent surgery again in
September 1999 and had an uneventful recovery from that surgery.  He
underwent surgery in December 1999 for hammertoe deformities on his right
foot.  The applicant complained of pain in shoes and boots.  He has worn
orthotics, pads, and changed shoes frequently with only temporary relief.
He had a possible neuroma, left third interspace.  The examining physician
stated that further surgery on his left foot was not advised.  The doctor
stated that he did not feel that the applicant had the durability necessary
for continued infantry-type work and that he might also be susceptible to
cold injury due to repeated digital surgeries.  He stated that the
applicant would likely need a permanent no run, no jump and alternate Army
physical fitness test profile, which would not be lessened and would likely
become more restrictive over time.  He stated that he did not anticipate
any significant change in his podiatric condition, and that there had been
dysfunction after recovery from his last surgery.

On 26 February 2000 the applicant was seen by the psychiatry service for a
mental health evaluation prior to his possible separation from the Army
under the
provisions of Army Regulation 635-200, chapter 14.  The applicant had the
mental capacity to understand and participate in proceedings, was mentally
responsible, and met the medical standards for retention in the Amy.  There
was no evidence of any psychiatric condition which warranted disposition
through medical channels.  He was psychiatrically cleared for an
administrative action deemed appropriate by command.

On 25 May 2000 Acting The Judge Advocate General stated that the findings
and sentence in the applicant’s general court-martial case were supported
in law and that the sentence was appropriate.  On 6 June 2000 the Army
Legal Service Agency so informed the applicant, stating that the findings
and sentence in his case was final and conclusive.

On 31 May 2000 the applicant’s commanding officer informed the applicant
that he was initiating action to separate him from the Army under the
provisions of Army Regulation 635-200, paragraph 14-12c, for commission of
a serious offense.  He stated that the reason for his action was his
conviction on 27 April 1999 by a general court-martial for an assault
consummated by a battery.

In a 3 August 2000 memorandum to the Landstuhl Regional Medical Center, the
applicant’s commanding officer stated that the applicant was not able to
perform any of the duties of his MOS (military occupational specialty).  He
had not qualified that year with his weapon and was unable to take the Army
physical fitness test because of his medical problems with his right knee,
both feet, lower back, and neck.  He was unable to participate in physical
training.  He stated that the applicant might have considerable
difficulties performing some basic soldier skills.  He could not complete a
forced road march of several miles with field equipment.

The applicant was evaluated again by an orthopedic doctor on 17 August
2000.  His condition was diagnosed as degenerative disk disease C-spine,
chronic right patellar tendonitis, mechanical low back pain, and chronic
headaches.  The doctor opined that all those conditions were unlikely to
improve as long has he was a soldier.  He was not a surgical candidate for
any of those conditions.  He might improve somewhat with activity
modification.  The doctor stated that his conditions resulted in him not
meeting medical retention standards, and that he was referring the
applicant to a PEB for evaluation and disposition.

An 18 August 2000 neurologic examination shows that the applicant’s
condition was diagnosed as mixed tension (chronic daily) and migraine
headaches, reportedly incapacitating and duty limiting by the applicant’s
report; and curious
left sided patch numbness involving the left extremities and left trunk,
which was neuroantomically difficult to localize.  He had an increased left
Achilles reflex, which was not noted by others in the past.  His left sided
hypaesthesia and paresthesias were described as episodic, involving his
face, extremities and trunk.  There was no weakness and no coordination
changes.  He also complained of intermittent left hand tremor, without
noted exacerbating factors, which resolves spontaneously.  The applicant
had a history of multiple head and neck traumatic injuries during parachute
landings.

A 16 October 2000 MEB summary indicates that the applicant had not been
able to perform his MOS (military occupational specialty) duties for the
past              18 months.  His condition was diagnosed as chronic right
patellar tendonitis, mechanical low back pain, degenerative disk disease of
the cervical spine, chronic headaches – mixed tension and migraine, chronic
forefoot pain, nasal valve collapse, positional vertigo, and large capacity
bladder.  That summary indicated that he was initially evaluated in July
1999 as part of a chapter action, and since then had two surgical
interventions and extensive specialty consultation.  The examining
physician, the Brigade surgeon, commenting on the applicant’s current
condition, stated that he continued to suffer mild-to-moderate foot
discomfort, and that he had recovered fully from his multiple surgical
procedures without complications.  He stated that the applicant continued
to use both orthotic and padded inserts in his footwear.  He walked with a
normal gait and completed his daily activities with minimal discomfort.
The doctor stated that despite the applicant’s chronic neck complaints, he
showed no functional disability related to his degenerative disc disease.
He had no further episodes of incontinence since his evaluation and
urodynamic studies.  He stated that the applicant continued to complain of
episodes of headache pain; however, he was able to control his symptoms
with medications.  The applicant had a permanent L3 profile, and was
restricted against running, jumping, and airborne operations.  He was
authorized an alternate aerobic activity on the Army Physical Fitness Test.
 The surgeon stated that the applicant did not meet the medical standards
for retention, and his conditions were not amenable to any further surgical
correction at that time.  He stated that it was unlikely that his condition
would resolve in a military environment, and recommended that his case be
referred to the PEB.

Medical Evaluation Board proceedings of 16 October 2000 diagnosed the
applicant’s condition as indicated above, indicating that all his
conditions except for chronic forefoot pain were incurred while on active
duty and did not exist prior to his service.  The MEB determined that his
problems with his feet existed prior to his service, but were permanently
aggravated by his service.  The findings and recommendation of the board
were approved on 21 November 2000.  The applicant concurred and indicated
that he did not desire to continue on active duty.

An 8 November 2000 DA Form 3349 (Physical Profile) indicates that the
applicant’s physical profile serial as 1 3 3 1 1 1.  The profile indicates
that he was able to do a number of activities, that he could walk or run at
his own pace, and bicycle and swim at this own pace.  He could carry a
rifle and march up to one mile and lift up to 20 pounds.  The profile shows
that the applicant’s commander stated that he required a change in his MOS,
and remarked that the applicant had to be chaptered out of the Army.

On 15 December 2000, in a memorandum to the Army Health Clinic in Vicenza,
the PEB indicated that it was unable to adjudicate the applicant’s case,
and requested a statement from the applicant’s commander explaining the
circumstances which resulted in the applicant’s reduction in grade, copies
of documents pertaining to the reduction in grade, copies of NCO evaluation
reports when the applicant was a staff sergeant, and a copy of the bar to
reenlistment form.  In January 2001 the PEB was provided the information
concerning the applicant’s reduction in grade and informed that a bar to
reenlistment was never initiated; however, he was flagged on 14 January
1999, but the flag had not been removed.  In a 23 April 2002 memorandum the
Southern European Task Force Inspector General informed the Army trial
defense service that the flag should have been removed once confinement was
completed, but it was not; however, it had now been removed.

On 2 February 2001 a PEB determined that the applicant did not have any
functional impairment which prevented his satisfactory performance of duty,
found him fit for duty in his current grade and specialty, and stated that
he should be returned to duty as fit.

The applicant nonconcurred with the PEB determination and on 25 February
2001 submitted an appeal to the effect that a soldier with his medical
condition could not stay in the Army, that his profile indicates that he
could not stand for more than 15 minutes without a 3 minute break, could
not wear a helmet and consequently, could not fire a weapon.  He commented
on his foot deformities resulting from his surgeries and incorrect medical
decisions, and stated that prior to his court-martial everything was right,
but now was not so.  He stated that his problems with his feet started in
1990, and that now he could not even walk with his children.  He stated
that after several surgeries to his knee, the doctors told him there was
nothing that they could do for him.  He commented on his neck pain, his
migraine headaches, back discomfort, and liver problems.  He requested that
the board not mix the legal matters with his medical problems.

On 12 March 2001 the PEB informed the applicant that his letter of rebuttal
was considered and his case reviewed, and that based upon the review the
PEB found no basis to change its action in his case and reaffirmed its
previous findings.  He was also informed that his case file and rebuttal
had been forwarded to the Army Physical Disability Agency for review.
In a 19 March 2001 memorandum to the PEB, the Office of the Staff Judge
Advocate of the Southern European Task Force requested that the applicant
be afforded a formal hearing (formal PEB).  In response thereto the PEB
stated that soldiers determined to be fit for duty do not have an
entitlement to a formal PEB since a finding of fit did not cause
involuntary separation for physical disability.

On 21 March 2001 the Physical Disability Agency informed the applicant that
his case was properly adjudicated, and that the findings and
recommendations of the PEB were supported by substantial evidence and were
affirmed.

Except for the medical consultations, MEB and PEB proceedings, as noted
above, the applicant’s medical records are not available to this Board.

On 11 April 2001 the applicant’s commanding officer informed the applicant
that he was initating action to separate him from the Army for commission
of a serious offense.  That official referred to the previous separation
action, the initiation of a separation procedure, and the applicant’s
request for an administrative separation board.  He also noted that the
applicant had requested that the proposed action be disapproved so that he
could be processed for a discharge by a PEB.  He noted that the separation
procedure was dismissed so that a PEB could consider his medical
separation, and also noted that on            2 February 2001 the PEB found
that he was fit for duty.  Consequently, he was initiating the action
because of his conviction by a general court-martial on        27 April
1999, and recommending that he receive a general discharge.

The applicant consulted with counsel, stated that he understood the basis
for the contemplated action, its effects, the rights available to him, and
the effect of any action taken by him in waiving his rights.  He requested
consideration by an administrative separation board, and personal
appearance before that board with counsel.  He stated that he understood
the nature and consequences of the general discharge that he might receive.


An 18 April 2001 report of psychiatric evaluation mirrored the 26 February
2000 report.

On 20 April 2001 the applicant’s commanding officer recommend to the
separation authority that the applicant be discharged for misconduct.  His
recommendation indicates that he included a copy of the applicant’s
psychiatric report and report of medical examination.

In an undated memorandum, the commanding general of the Southern European
Task Force informed that applicant that he had directed that the
administrative separation be referred to the administrative separation
board, and that the board submits its findings and recommendations to him.

An administrative separation board met on 22 June 2001.  The applicant and
his counsel were present throughout the proceedings.  The board considered
the evidence, and heard and considered the testimony of witnesses.
Testimony included that of the Brigade surgeon.  That officer stated that
it was determined in July 1999 that the applicant needed to be medically
boarded, and the medical evaluation board was completed; however, a Judge
Advocate General officer lost the board proceedings, and consequently, a
second board was initiated in October 2000.  That doctor stated that he had
done six or seven workups on the applicant, and that he still had ongoing
care.  He said that the only consultation that came back resulting in a
functional loss was the podiatry [consultation].  He stated that both of
the applicant’s feet have had surgery, that his feet were mangled, and that
it was pretty serious to have feet like his as a soldier.  He stated that
the applicant should be reclassified – that he could not be an artilleryman
because of his feet.

The board found that the allegation that the applicant committed a serious
offense was supported by a preponderance of the evidence, and that his
conduct warranted separation.  The board recommended that the applicant be
separated and that he be issued a General Discharge Certificate.

On 27 July 2001 the separation authority approved the findings and
recommendations of the board.  The applicant was discharged on 4 October
2001.  He had almost 11 years of service, and 47 days of lost time.

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, which are 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 MEB determines the soldier does not meet retention standards, the
board will recommend referral of the soldier to a 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.

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, rank, or rating.

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 635-200 sets forth the basic authority for the separation
of enlisted personnel.  Chapter 14 establishes policy and prescribes
procedures for separating members for misconduct.  Paragraph 14-12c states
that soldiers are subject to separation for commission of a serious
military or civil offense, if the specific circumstances of the offense
warrant separation and a punitive discharge would be authorized for the
same or a closely related offense under the MCM.  A discharge under other
than honorable conditions is normally appropriate for a soldier discharged
for misconduct.  However, the separation authority may direct a general
discharge if such is merited by the soldier’s overall record.  When the
sole basis for separation is a serious offense which resulted in a
conviction by court-martial that did not impose a punitive discharge, the
soldier’s service may not be characterized under other than honorable
unless approved by Department of the Army.

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 evidence indicates that the applicant was initially considered by a
medical evaluation board in July 1999 subsequent to his conviction by a
general court-martial in April 1999.  As indicated by the Brigade surgeon
in his testimony before the June 2001 administrative separation board, the
board proceedings were lost and were not initiated again until October
2000.  In the meantime, separation proceedings were initiated against the
applicant because of his misconduct, and then apparently dismissed because
of the initiation of medical board proceedings.  Separation proceedings
were initiated again in April 2001 after the results of the medical
proceedings were affirmed by the Physical Disability Agency in March 2001.

2.  There is no evidence and neither the applicant nor counsel has
submitted any to show that the finding that the applicant was fit for duty
by the PEB was improper, or that the PEB found him fit only because he was
court-martialed and
was pending separation action.  This Board takes for granted that medical
personnel, MEB members, and PEB members have no vested interest in a
soldier’s medical condition, and consequently, unless there is evidence to
the contrary, does not question the integrity of those personnel.

3.  The applicant had various medical problems as indicated by the October
2000 MEB.  His foot problems, neck and low back pain, problems with his
knee, nasal valve collapse, however, existed prior to his court-martial in
April 1999, some of these conditions having been present for several years.
 Yet he continued to perform commendable as an artilleryman in an airborne
unit, with no apparent physical difficulties marring his duty performance,
as evidenced by his NCO evaluation reports.  The Board realizes that the
applicant continued to have problems with his feet after his court-martial,
notably in September and December 1999, and notes that the Brigade surgeon
stated in his appearance before the applicant’s separation board, that the
only consultation that came back resulting in a functional loss was the
podiatry consultation.  Nonetheless, he was authorized to perform an
alternate aerobic activity for the Army Physical Fitness Test, and could
perform a number of activities, to include carrying a rifle and marching up
to one mile.

4.  The Board is not convinced that the applicant’s medical conditions
prevented him from performing his duties as an artilleryman.  The applicant
performed commendably prior to his court-martial, and although there is no
record concerning his performance of duty thereafter, he apparently
continued working until his discharge in October of 2001.  The PEB
determined that he was fit for duty.  He has not provided any evidence to
refute that determination.  Consequently, his request for physical
disability retirement or separation is not granted.

5.  Since the Board has denied the applicant’s request for physical
disability retirement or separation, there is no reason to grant his
request to expunge from his records the documents concerning his general
discharge.  The applicant’s discharge proceedings were conducted in
accordance with appropriate law and regulations.  His administrative
separation was accomplished in compliance with applicable regulations with
no indication of procedural errors which would tend to jeopardize his
rights.  The character of the discharge is commensurate with the
applicant's overall record of military service and is in compliance with
the applicable regulation.

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

7.  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.

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

__RVO__  __GJW__  __RJO __  DENY APPLICATION



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



                                    INDEX

|CASE ID                 |AR2002076195                           |
|SUFFIX                  |                                       |
|RECON                   |YYYYMMDD                               |
|DATE BOARDED            |20030213                               |
|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.                      |                                       |
|3.                      |                                       |
|4.                      |                                       |
|5.                      |                                       |
|6.                      |                                       |