RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           8 March 2005
      DOCKET NUMBER:  AR20040005392


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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 L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Paul M. Smith                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request to
increase the percentage of his Army disability rating.

2.  The applicant questioned, in a letter to his Congresswoman, why only
civilians were on the Army Board for Correction of Military Records (ABCMR)
panel that considered his case, why the ABCMR did not address Public Law
106-65, and why he was not offered the opportunity to appear before the
ABCMR.  He again questioned why his head injury (reinjured in 1979) was not
considered by the medical board, nor his back and leg injuries.

3.  In a paragraph listed as "14)" in his letter to his Congresswoman, the
applicant stated that no one ever asked him if he could perform his duties.
 He stated that he would have said yes.  He stated he told that to Ms. S___
on         17 March 1981.

4.  In a note on his DA Form 199 (Physical Evaluation Board Proceedings),
the applicant stated that he was never given an opportunity to reject the
40 percent disability rating nor told of an option to appeal.

5.  In a note on his retirement orders, the applicant stated that he never
received a DD Form 214 (Certificate of Release or Discharge from Active
Duty).

6.  The applicant provides his previous Board case but no additional
evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
ABCMR in Docket Number AR2003093917 on 1 April 2004.

2.  The applicant provides new arguments that will be considered by this
Board.

3.  The applicant served on active duty in an enlisted status from 4 March
1955 through 21 February 1957.  During this period of service he was
involved in an automobile accident wherein he incurred a head injury.

4.  The applicant served in the U. S. Army Reserve (USAR) in an enlisted
status from 22 February 1957 through 30 March 1965.  He was appointed a
warrant officer in the USAR as an Automotive Repair Technician and served
in an active Reserve status.  His notification of eligibility for retired
pay at age 60 (his 20-year letter) is dated 5 August 1975.
5.  A Clinical Record Consultation Sheet dated 21 June 1979 shows the
applicant was involved in a motor vehicle accident on 13 May 1979.  The
form shows the applicant incurred, in addition to other injuries, a
cerebral concussion.  A Chronological Record of Medical Care shows that, on
1 July 1979, he was still complaining of a low backache radiating to both
legs.

6.  The applicant was promoted to Chief Warrant Officer Four on 31 March
1980.

7.  A Medical Evaluation Board (MEB) Narrative Summary dated 11 March 1981
shows the applicant presented for evaluation of neck pain and right arm
pain.  He stated he was unable to work because he could not hold a hammer
in his hand.  He stated that if he looked up he got pain in both shoulders
and he was unable to hold anything.  He complained of numbness in the
entire arm and complained of parasthesia in the distal one-third of the
forearm on the ulnar side and in the ring and little fingers of the right
hand.  He stated he was not doing any heavy work because of his neck injury
and weakness in the arm and hand.  He also complained of occasional back
pain and of a "hot" feeling in the left leg.

8.  A DA Form 8-118 (Medical Board Proceedings) dated 17 March 1981 shows
the applicant had 9 conditions: (1) rupture of biceps, right side; (2)
ligamentous injury of the neck, moderate; (3) carpal tunnel syndrome
bilaterally - mild; (4) ulnar nerve compression at Guyon's canal
bilaterally – mild; (5) status post fractured ribs, 5, 6, and 7, healed;
(6) minor degenerative arthritis, mid and lower thoracic spine; (7) status
post fusion of L4-L5, existed prior to service (EPTS); (8) status post
laminectomy L3-L4, EPTS; and (9) post concussion syndrome, resolved – EPTS
1956.  The MEB recommended the applicant be referred to a Physical
Evaluation Board (PEB).

9.  On 4 May 1981, an informal PEB found diagnoses 5, 7, 8, and 9 to be not
ratable conditions.  The PEB found diagnoses 3 and 4, including bilateral
factors, were disabling for a combined rating of 37 percent; diagnosis 2 to
be disabling for a 10 percent rating; and diagnoses 1 and 6 to be disabling
but at a zero percent rating.  The PEB recommended the applicant be
permanently retired with a        40 percent disability rating.

10.  On 8 May 1981, the applicant signed the DA Form 199 and checked, in
item 13, that he concurred and waived a formal hearing of his case.  Other
options listed in item 13 included that he did not concur but waived a
formal hearing and his written appeal was or was not attached or that he
did not concur and demanded a formal hearing.

11.  The applicant was relieved from duty and placed on the retired list 26
June 1981.

12.  Title 10, U. S. Code, section 1552(a)(1) states that the Secretary of
a military department may correct a military record acting through boards
of civilians of the executive part of that department.

13.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-
11 of this regulation states that applicants do not have a right to a
hearing before the ABCMR.  The regulation provides that the Director of the
ABCMR or the ABCMR may grant a formal hearing before which the applicant,
counsel, and witnesses may appear whenever justice requires.

14.  Public Law 106-65, enacted on 5 October 1999, amended Title 10, U. S.
Code as follows:

      a.  section 1207a was added to provide for the medical separation of
a member who otherwise would not be eligible because his disability was
determined to have been incurred before the member became entitled to basic
pay in his or her current period of active duty;

      b.  section 12731b was added to provide for a member of the Selected
Reserve who no longer meets the qualifications for membership in the
Selected Reserve solely because the member is unfit because of physical
disability to be treated, for the purposes of section 12731 (Age and
Service Requirements) of this title, as having met the service requirements
and be provided with the notification required if he has completed at least
15 and less than 20 years of service; and

      c.  section 1413 was added to provide for special compensation for
certain severely disabled uniformed services retirees.  Eligible members
were members who had completed at least 20 years of service that were
creditable for purposes of computing the amount of retired pay to which the
member was entitled.  The Fiscal Year 2004 National Defense Authorization
Act repealed section 1413.

15.  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 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.
 It states that there is no legal
requirement in arriving at the rated degree of incapacity to rate a
physical condition which is not in itself considered disqualifying for
military service when a soldier is found unfit because of another condition
that is disqualifying.  Only the unfitting conditions or defects and those
which contribute to unfitness will be considered in arriving at the rated
degree of incapacity warranting retirement or separation for disability.

16.  Title 38, U. S. Code, sections 1110 and 1131, permits the VA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.  The VA, however, is not required by law to
determine medical unfitness for further military service.

17.  Army Regulation 135-155 (Promotion of Commissioned Officers and
Warrant Officer other than General Officers), in effect at the time, stated
that a member who had been recommended for promotion to the next higher
grade must have met several requirements, including being medically
qualified, before he could be promoted.

18.  Army Regulation 635-5 prescribes the separation documents prepared for
Soldiers upon retirement, discharge, or release from active military
service or control of the Army.  In pertinent part it states that the DD
Form 214 is a synopsis of the Soldier’s most recent period of continuous
active duty.

DISCUSSION AND CONCLUSIONS:

1.  Only civilians were on the ABCMR panel that previously considered the
applicant's case because that is what the law provides for.

2.  Public Law 106-65 does not apply to the applicant's circumstances:

      a.  section 1207a does not apply to the applicant.  This section was
added to provide for the medical separation of a member who otherwise would
not be eligible because his disability was determined to have been incurred
before the member became entitled to basic pay in his or her current period
of active duty (emphasis added).  The applicant was in the USAR not
(emphasis added) on active duty and did not have 8 years of active duty;


      b.  section 12731b does not apply to the applicant.  This section was
added to provide for a member of the Selected Reserve who no longer meets
the qualifications for membership in the Selected Reserve solely because
the
member is unfit because of physical disability to be treated, for the
purposes of the age and service requirements, as having met the service
requirements and be provided with the notification required if he has
completed at least 15 and less than 20 years of service.  The applicant had
already received his 20-year letter in 1975; and


      c.  section 1413 did not apply to the applicant.  This section was
added to provide for special compensation for certain severely disabled
uniformed services retirees.  Eligible members were members who had
completed at least 20 years of service that were creditable for purposes of
computing the amount of retired pay to which the member was entitled.
Other than the applicant's initial period of almost 2 years on active duty,
all his service was in the USAR not on active duty.  There is no evidence
to show he accrued 20 years (not just            20 qualifying years) of
service for retired pay.  In addition, this section was repealed in fiscal
year 2004.

3.  In any case, Public Law 106-65 was enacted 18 years after the applicant
was found to be medically unfit for retention.

4.  A formal hearing before the ABCMR is not a right.  The Director of the
ABCMR or the ABCMR may grant a formal hearing before which the applicant,
counsel, and witnesses may appear whenever justice requires.  It appears
the previous ABCMR panel determined that there was sufficient evidence of
record to decide his case and that his personal appearance was not
required.

5.  The applicant's MEB Narrative Summary showed he presented for
evaluation of neck pain and right arm pain and that he was unable to work
primarily because of numbness in his entire arm and parasthesia in the
distal one-third of the forearm on the ulnar side and in the ring and
little fingers of the right hand.  He also stated he was not doing any
heavy work because of his neck injury and weakness in the arm and hand.

6.  The MEB Narrative Summary noted that the applicant also complained of
occasional back pain and of a "hot" feeling in the left leg but did not
mention that the applicant complained that he was unable to work because of
these conditions.  He also did not state that he could not work because of
head injury or a back condition.

7.  There is no legal requirement in arriving at the rated degree of
incapacity to rate a physical condition which is not in itself considered
disqualifying for military service when a soldier is found unfit because of
another condition that is disqualifying.  Only the unfitting conditions or
defects and those which contribute to unfitness will be considered in
arriving at the rated degree of incapacity warranting retirement or
separation for disability.  There is no evidence the applicant was unfit to
perform his duties because of any medical problems with his leg, back, or
head.  Therefore, there is no evidence that the failure of the PEB to
consider any leg, back, or head conditions was detrimental to the
applicant.

8.  It is noted that it appears all of the applicant's injuries were
incurred in May 1979 or earlier.  His original head injury was incurred in
1956, yet he successfully completed 20 years of military service after that
event.  He was promoted to Chief Warrant Officer Four in March 1980, almost
a year after his 1979 automobile accident.  To be promoted he was required
to have been medically qualified.

9.  In addition, it is noted that in his letter to his Congresswoman the
applicant rather vehemently contended that he could perform his duties and
that he told Ms. S___ on 17 March 1981 he could perform his duties.  This
contention contradicts his contention that any other medical conditions
rendered him unfit to perform his duties.

10.  The applicant contends in a note on his DA Form 199 that he was never
given an opportunity to reject the 40 percent disability rating nor told of
an option to appeal.  The DA Form 199, which he signed on 8 May 1981,
contradicts that contention.  Item 13, which he checked indicating that he
concurred and waived a formal hearing of his case, also listed other
options that included not concurring but waiving a formal hearing and his
written appeal would or would not be attached and that he did not concur
and demanded a formal hearing.  It is not reasonable to presume a Chief
Warrant Officer Four would not have read all of the listed options.

11.  The applicant was not issued a DD Form 214 upon his placement on the
retired list because he had not been separated from active duty.  DD Forms
214 are issued only upon release from active duty.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mdm___  __bje___  __pms___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AR2003093917 dated 1 April 2004.




            __Mark D. Manning_____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040005392                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050308                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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