MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            29 July 1999                 
	DOCKET NUMBER:   AR1998012198

	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	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Charles H. Loundermon		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Curtis L. Greenway		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, that his records be corrected to show he was permanently retired based on a physical disability.  Additionally, he requests issuance of a military identification card with all medical benefits.

APPLICANT STATES: That he was placed on TDRL (Temporary Disabled Retired List), 10 percent disabling.  The Department of Veterans Affairs (VA) rated him at 30 percent.  He further indicates he had no counseling from the Army.  He requests all medals to which he is entitled be awarded.  He wants all the money the Army is supposed to give him; the 10 percent is not good enough. 

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

On 28 December 1984, the applicant enlisted in the Army.  He completed his required training and was awarded military occupational specialty 13B (Cannon Crewmember).  He was advanced to pay grade E-4 on 28 February 1987.

On 20 April 1988, Medical Evaluation Board (MEBD) Proceedings indicate he was diagnosed with Human Immunodeficiency Viral (HIV) Infection; adjustment disorder; and, microcytic hypocromic anemia.  The MEBD referred his case to a Physical Evaluation Board (PEB).  The applicant concurred.

On 28 April 1988, PEB Proceedings indicate he was found unfit for further active service based on HIV with an adjustment disorder and microcytic hypocromic anemia.  The PEB recommended he be placed on the TDRL with a disability rating of 30 percent.  The applicant concurred.

On 8 June 1988, the applicant was placed on the TDRL with a disability rating of 30 percent.  His Report of Separation indicates he had 3 years, 5 months and 10 days of creditable service.  He was entitled to award of the Good Conduct Medal, the Army Service Ribbon, and the Overseas Service Ribbon.  

On 11 July 1989, PEB Proceedings indicate his condition was improved, but he should remain on the TDRL until the next PEB evaluation.

On 15 April 1991, PEB Proceedings indicate his condition had improved and found him unfit for further active service.  The PEB recommended his separation with a 10 percent disability rating.  All attempts failed to locate the applicant for his input and the PEB proceeded with removal action, as prescribed by regulation.

On 12 June 1991, the applicant was removed from the TDRL and separated with a 10 percent disability rating.

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, grade or rating because of disability incurred while entitled to basic pay.

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 or 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.  The evidence in this case does not support his contention that there was an error or injustice in his disability rating by the PEB.

2.  The applicant’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities.  His separation with severance pay was in accordance with law and regulation.

3.  The medical evidence of record supports the determination that the applicant’s unfitting condition was properly diagnosed and rated at the time of his discharge.

4.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation from the Army.

5.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. The applicant has been a beneficiary of that adjustment.

6.  Since awards and decorations are normally presented as they are earned, this Board presumes regularity in that any awards or decorations to which the applicant is entitled were presented at the time.

7.  There is no evidence that the applicant is entitled to further financial renumeration by the Army.
8.  In order to justify correction of a military record, the applicant must sow 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. 

9.  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

chl______  slp______ clg______ DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998012198	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 July 29	
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	PDR	
2.		
3.		
4.		
5.		
6.