MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 19 AUGUST 2003
         DOCKET NUMBER: AR2003085336

         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. Fred N. Eichorn		Chairperson
Ms. Margaret V. Thompson		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, physical disability retirement or separation.

APPLICANT STATES: That he should receive a 20 percent to 30 percent disability rating from the date of his accident [in 1956] until the present day. He alleges that his name was forged on a compensation agreement, that he was lied to, and that there was poor medical supervision. He was informed that he could only draw three weeks compensation and was never sent back to a doctor to have the stitches removed from his index and middle fingers. He can only bend them half way. He has always had pain and a partial disability in his left hand.
When he reenlisted, he told the examining physician about his accident; however, they had no proof to verify his contention. If his case can be settled satisfactorily, then he will forego hiring counsel.

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

On 10 July 1956, the applicant, then a member of the South Carolina Army National Guard, injured his hand at Fort McClellan, Alabama, when the traveling lock bar of a 155mm howitzer fell across his hand while removing the jack pin. He sustained a crushed middle joint of his left index finger. An individual sick slip of 10 July 1956 shows that he had a laceration to his left index finger, and a fracture to the middle phalanx. His injury was determined to be in the line of duty.

On 16 July 1956 he signed a Standard Form for Agreement as to Compensation. That agreement showed that he would receive $24.00 per week from the South Carolina state workmen's compensation fund from 16 July 1956 until terminated.
A 16 August 1956 notice of award from the South Carolina Industrial Commission shows that the applicant received compensation for a temporary total disability of $72.00 from 23 July 1956 through 21 August 1956.

A 2 June 1958 report of medical examination, conducted for the purpose of reenlistment, shows that the applicant was medically qualified for military service with a physical profile serial of 1 1 1 1 1 1. In the report of medical history that he furnished for the examination, the applicant stated that his health was good.

The applicant was discharged from the Army National Guard on 24 September 1958. He enlisted in the Regular Army on 25 September 1958. He was discharged because of a hardship on 7 April 1960 and transferred to the Army Reserve.

A National Guard Bureau Form 22 (Report of Separation and Record of Service in the Army National Guard) shows that the applicant was discharged from the South Carolina Army National Guard on 31 August 1963 on his ETS (expiration of term of service). His specialty on that form is shown as a light weapons infantryman. The form shows that he qualified as a sharpshooter with the rifle in June 1961. It also shows his prior military service, from 1955 to 1958 with the South Carolina Army National Guard as a cannoneer, and from September 1958 to April 1960 as a signal supply specialist on active duty in the Army.
The applicant reenlisted in the Army National Guard of North Carolina on 21 July 1977. His DA Form 2-1 (Personnel Qualification Record) shows that he continued as a member of that organization until his transfer to the Retired Reserve in 1990. That form shows that he served as a heavy vehicle driver with the 1452nd Transportation Company, and beginning in 1980 as a gunner and later a howitzer section chief with an artillery battalion. The applicant's evaluation reports show ratings that ranged from satisfactory to outstanding. He completed the primary leadership development course in 1985 and attained the rank of staff sergeant.

On 27 September 1990 the applicant was discharged from the Army National Guard and transferred to the Retired Reserve. He was eligible for entitlement to retired pay at age 60.

The applicant underwent four medical examinations since his enlistment in the Army National Guard in 1977 – July 1977, August 1981, September 1985, and March 1988. The reports of each examination show that he was medically qualified for retention. The applicant indicated in the 1977 examination that his health was good. In each ensuing report of medical examination, the applicant stated, in effect, that there had been no significant change in his medical condition since his last examination.

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 40-501 provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, then in effect, provides 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.

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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 shows that the applicant continued to serve in the military after his accident in 1956, both in the Army National Guard and on active duty in the Regular Army. His service culminated with his transfer to the Retired Reserve in 1990. Not only did he serve, but he performed his duties satisfactorily – as an artilleryman, an infantryman, a supply specialist while on active duty, a heavy vehicle driver, and again as an artilleryman. His evaluation reports dating from 1977 showed that he performed his duties well. The reports of medical examination show that there was nothing medically wrong with him.

2. The applicant believes that this Board should award him compensation for an injury that he sustained in 1956, albeit that he continued his military service, and transferred to the Retired Reserve in 1990 over 30 years after that accident, and in all probability is now drawing retired pay. The Board is not so inclined. There was nothing medically wrong with him during his military service, at the time of his transfer to the Retired Reserve, or now, that entitles him to physical disability retirement or separation.

3. 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.

4. 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

__FNE __ __MVT__ ___JTM _ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085336
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030819
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.