MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         6 January 1999      
	DOCKET NUMBER:   AC98-08462
				   AR1998006032

	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. Loren G. Harrell		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Curtis W. Barbee		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, disability retirement.

APPLICANT STATES:  In effect, that he is unable to work because of injuries he sustained in combat and that he has been declared 100 percent disabled by the VA.  (NOTE:  The Board considered the applicant’s request on 30 December 1998 and, although they voted to deny relief, the Board, by unanimous vote, determined that the applicant’s failure to file within the statutory time limits should be excused.  Hence the applicant’s case has been reconstituted to excuse his failure to timely file.)

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

He served an initial period of active duty between 1961 and 1963 and then re-enlisted on 13 January 1964.

The applicant was assigned to Vietnam as an infantryman in January 1966.  On 9 July 1966 he sustained a ruptured ear drum when a mine exploded next to him. In spite of the injury he was returned to duty.  A medical report notes that the injury was “asymptomatic until 30 July 1966 when he developed pain and discharge from his left ear.”  He was awarded a Purple Heart for this injury in August 1966.

On 17 July 1966 the applicant sustained fragment wounds to his back, head and left arm when lighting struck a claymore mine while he was on guard duty at his unit.  The injury was determined to have been accidentally incurred.  As a result of this injury, however, the applicant was medically evacuated to Japan and ultimately assigned to Fort Sill, Oklahoma where he completed his enlistment contract.

The applicant underwent a physical examination in July 1967.  The examination noted the applicant’s injuries but found him medically qualified for separation with a physical profile of 1-1-1-1-1-1.

On 7 July 1967 he was released from active duty with an honorable characterization of service.

Subsequent to his separation, the VA granted him disability compensation for residuals of shell fragment wounds and by October 1991 he was declared 100 percent disable by the VA for “lung cancer, degenerative lung disease with emphysema.”

Army Regulation 40-501, paragraph 3-3b(1), as amended, 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 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Title 38, United States Code, sections 310 and 331, 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.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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.  Although the applicant's separation physical noted his combat injuries his continued performance of duty until his separation from active duty in November 1992 raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness of injury concomitant with his separation.

2.  The evidence of record indicates he did not have any medically unfitting disability that required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

3.  A rating action by the VA does not necessarily demonstrate any error or injustice by the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its reason or authority for separation.

4.  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 the aforementioned requirement.

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

__tdh___  ___lls__  ___cwb____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.