MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            6 January 1999
	DOCKET NUMBER:   AC97-07235 
                                              AR1998013977

	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. Thomas D. Howard		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: A disability discharge based on a Department of Veterans Affairs combined service-connected disability rating of 30 percent.

APPLICANT STATES: That if his medical conditions been reviewed before discharge, then he would have been offered retirement. 

COUNSEL CONTENDS: That the applicant was not properly examined by the Army based on the 29 August 1996 VA Rating Decision.

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

During the period 23 October 1985 to 11 February 1986, he served on active duty for training as a member of the Army National Guard.  The applicant enlisted in the Regular Army on 25 September 1987.  He was honorably separated on 24 April 1993 based on the expiration of his term of service.

At the time of his separation, a DA Form 1811 (Physical Data and Aptitude Test Scores Upon Release from Active Duty) was completed.  This form, which was authenticated by the applicant, shows he had a physical profile of 111111.

On 29 August 1996, a VA Rating Decision indicates award of a combined service-connected disability rating of 30 percent for Bursitis, left shoulder, 
10 percent; Bursitis, right shoulder, 10 percent; Muscle tension and migraine headaches, 10 percent; chondromalacia, right knee, 0 percent; right calcaneous fracture, 0 percent; Esophagitis, 0 percent; Scar, residual, laceration, left thigh, 
0 percent; and, Retropatellar pain syndrome, left knee, 0 percent.

AR 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, their 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.

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. 

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 applicant was on active duty from 25 September 1987 to 24 April 1993.  Service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medially unfit for retention on active duty.  Evidence, at the time of his separation, shows his physical profile was 111111.  Accordingly, the applicant was separated from active duty for the expiration of his term of service, not for physical disability.

2.  The VA Rating Decision was completed over three years after the applicant’s separation.  The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  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 rating.

3.  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.

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

TDH____  LLS_____  CWB____  DENY APPLICATION

						Loren G. Harrell
						       Director