Memorandum of consideration in the case of



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MEMORANDUM OF CONSIDERATION

IN THE CASE OF:


BOARD DATE: 28 February 2002

DOCKET NUMBER: AR2001063099


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. William Blakely




Analyst

The following members, a quorum, were present:







Mr. Raymond V. O'Connor, Jr.




Chairperson




Mr. Celia L. Adolphi




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)



APPLICANT REQUESTS: In effect, reconsideration of his request that his general, under honorable conditions discharge (GD) be upgraded to a fully honorable discharge (HD); that the reason for his discharge be changed to medical; and that he be provided slave reparations.
APPLICANT STATES: In effect, that the original consideration of his case by the Board, that was summarized in a Memorandum of Consideration

(MOC-AR2000047112), dated 27 March 2001, and an administrative letter of denial of his request for reconsideration by the Board staff (AR2001056263), dated 17 September 2001, did not include an Army orthopedic examination that he now provides as new evidence.


NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records that were summarized in MOC-AR2000047112, dated

27 March 2001, which was prepared to reflect the Board’s original consideration of this case.


The applicant submits an excerpt from his Department of Veterans Affairs (VA) medical record that includes a medical history and physical examination that contained a date stamp that indicates they were received by the VA on 29 April 1985. This is considered as a submission of new evidence that requires reconsideration by the Board.
The medical document submitted by the applicant lists the following three dates of medical treatment: 23 November 1984; 4 January 1985; and 1 April 1985. This treatment record further provides a medical history of the treatment on his left hip that first occurred when he fractured the bone in the left iliac crest and a hip strain prior to entering the Army. The applicant stated that while serving on active duty, he developed pain in his left hip while engaging in physical training, and that the pain became progressively worse. A physical examination conducted by the VA showed that he walked with an antalgic gait on the left and demonstrated pain with normal range of motion of the hip over the anterior-superior iliac spine. The impression arrived at was, “ligamentous strain: pelvis and hip.”
The earliest date of treatment is 23 November 1984, which indicates this care took place while the applicant was on active duty. However, the treatment record also confirms, by the applicant’s own admission, that this injury first occurred prior to his entering active duty. This record does not indicate an aggravation of the injury on the date of treatment and only that the applicant entered seeking an evaluation of his injury.

As previously noted, the applicant’s military medical record did not indicate his medical condition was first incurred during military service while he was entitled to receive basic pay or that it rendered him medically unfit for retention on active duty. Also, the record gives no indication that he was ever referred to a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB) and his final medical examination confirms that he was medically fit and cleared for retention/separation by competent medical authority.


On 27 March 2001, this Board concluded that the evidence of record showed that the applicant had a pre-existing injury to his hip that was documented in his entrance physical examination in March 1982, and that he had been diagnosed with a fractured left iliac bone with a sprain in his left hip at the age of 15. It further found that the applicant had been cleared for retention/separation by competent medical authority with a physical profile of 111111; thus, he was separated by reason of unsatisfactory performance, not as the result of a medical condition or physical disability. The Board finally determined that the applicant had failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice and therefore relief was not warranted.
Army Regulation 635-40, paragraph 2-2b, as amended, 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. In addition, Title 10 of the United States Code, chapter 61, provides for disability retirement or separation of 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.
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 Board notes the applicant’s contention that his GD should be upgraded to an HD and that the reason for his discharge should be changed to medical; however, it finds these claims lack merit.
2. The new evidence provided by the applicant does not provide information or evidence that alters the original findings of the Board. Further this document confirms that the applicant had been diagnosed with the condition in question prior to entering active duty, that this condition was not disabling, and it did not warrant processing under medical/disability provisions at the time of his separation.
3. The evidence of record still confirms that the applicant was found fit for retention and cleared for separation by competent medical authority during his discharge processing. Therefore, the Board concludes that the overall merits of the case, including the latest submission and arguments are insufficient as a basis for the Board to reverse its previous decision.
4. In addition, the Board notes the applicant’s request for slave reparations; however, resolution of this issue is not within the purview of this Board, which by law, is only empowered to correct military records based on the existence of error or injustice.
5. 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__ _ _CAL__ __JTM DENY APPLICATION

Carl W. S. Chun

Director, Army Board for Correction

of Military Records


INDEX


CASE ID

AC2001063099

SUFFIX




RECON

YYYYMMDD

DATE BOARDED

2002/02/28

TYPE OF DISCHARGE

(GD)

DATE OF DISCHARGE

19841204

DISCHARGE AUTHORITY

AR635-200, chapter 13. . . . .

DISCHARGE REASON

Unsatisfactory Performance

BOARD DECISION

(DENY)

REVIEW AUTHORITY




ISSUES 1.

995145.0000

2.




3.




4.




5.




6.





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