MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 February 1999                   
	DOCKET NUMBER:   AC97-10225
				   AR1998012415

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Van B. Cunningham		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:  That his separation by reason of completing his normal expiration term of service (ETS) be changed to a disability retirement.

APPLICANT STATES:  He has been living with pain since 1991.  It is documented.  He is currently receiving VA compensation for conditions the Army failed to diagnose.

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

He enlisted in the Regular Army on 7 September 1989.  He completed basic training and advanced individual training and was awarded military occupational specialty 95B (Military Police).

Medical evidence shows that he began having pain in his back in December 1990 when the vehicle he was riding in was involved in a minor accident.

The applicant served in Southwest Asia from 5 October 1990 – 26 March 1991.  He was involved in another vehicular accident there.

He was involved in a vehicle/bicycle accident in September 1992 when he again injured his back.

In April 1994, he was examined for a Medical Evaluation Board (MEB) action for a complaint of back and knee pain.  Neurology consultation reported no sign of neurologic abnormality present.  Internal medicine consultation showed no evidence of medical abnormality.  It was noted he was taking medicine (Zantac) for a previous diagnosis of duodenal ulcer and also taking folic acid.  He was diagnosed with mechanical back pain; duodenal ulcer, resolved; and low serum folic acid level, resolved.  He was referred to a Physical Evaluation Board (PEB). On 9 May 1994, the applicant agreed with the findings and recommendation and certified that the medical board accurately covered all of his medical conditions.

On 13 May 1994, an informal PEB found the applicant fit for duty.  The applicant did not concur and demanded a formal hearing.

On 3 June 1994, a formal PEB found the applicant fit for duty.  The applicant did not concur in the findings and appealed.  On 13 June 1994, the U. S. Army Physical Evaluation Board reviewed his rebuttal and found that no change to the original findings was warranted.

On 6 November 1994, the applicant was released from active duty and transferred to the U. S. Army Reserve Control Group (Reinforcement), in pay grade E-4, after completing his normal ETS.  He had completed 6 years and       2 months of creditable active service.

On 4 April 1995, the applicant was voluntarily released from the U. S. Army Reserve Control Group (Reinforcement) and reassigned to the 810th Military Police Company, Tampa, FL.

On 16 October 1998, the VA granted the applicant compensation for chronic diarrhea, 10 percent from 8 April 1997; major depression, 10 percent from           7 November 1994; hypertension, 10 percent from 7 November 1994; lumbosacral disc disease, 10 percent from 7 November 1994; and abdominal abscess, 10 percent from 7 November 1994.  His hypothyroidism, which had been evaluated at 10 percent from 7 November 1994, was reduced to zero percent.

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 regulation defines “physically unfit” as unfitness due to 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 purpose of his employment on active duty.  “Physically unfit” is synonymous with “unfit because of physical disability.”

Title 38, U. S. 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.

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.  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.

2.   The rating action by the VA does not necessarily demonstrate an error or injustice in the Army evaluation.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its findings that the applicant was fit for duty.

3.  The Board notes that the VA granted the applicant compensation for only one condition related to what had been his chief complaints of back and knee pain, and even so at only a 10 percent rating.  The Board also notes that the applicant felt fit enough after his separation to request assignment to a Reserve Military Police unit.

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

__JHL___  __AAO___  __VBC___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-10225/AR1998012415	
SUFFIX		
RECON		
DATE BOARDED	19990204	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.01	
2.		
3.		
4.		
5.		
6.