MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            20 May 1999
	DOCKET NUMBER:   AC98-07184
			              AR1999023896

	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. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Hubert O. Fry Jr.		Member	
	Ms. Margaret C. Thompson 		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, physical disability retirement or separation.

APPLICANT STATES:  That she had an accident in Saudi Arabia causing serious injury to her back and legs.  That she was treated unjustly because she was still undergoing treatment when discharged.  She should not now have to pay for treatment for an accident that happened while she was serving her country.

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

She enlisted in the Army Reserve on 19 May 1988 for a period of 8 years.  She served on active duty from 26 July 1988 to 2 December 1988 to complete basic and advanced individual training.  On 27 September 1990 the applicant was ordered to active duty with her Reserve unit in support of Operation Desert Shield/Storm.

On 1 December 1990, while in Saudi Arabia, the applicant suffered head and left knee injuries when a bunker that she was sitting on collapsed.  On 30 April 1991 she was issued a 60-day temporary physical profile for back pain, with assignment limitations of no stooping, bending, or lifting more than 40 pounds.

On 24 July 1991 the applicant was released from active duty at Fort Sam Houston, Texas, and returned to her Reserve unit.

A VA Rating Decision dated 10 December 1993, based on a VA medical examination for a request for service connected disability for neck and back sprain, indicated that these conditions during service were shown to be temporary and resolved with treatment.  Service connection for both conditions was denied.

A subsequent VA Rating Decision of 7 April 1998 awarded the applicant 
20 percent service connected disability compensation for myofascial pain syndrome involving the cervical, thoracic and lumbar spine regions; and 
10 percent for semilunar cartilage degeneration, left knee.

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

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In 

each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

Paragraph 3-2b(1) of the regulation provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

Paragraph 3-2b(2) further provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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 provide treatment and to award compensation for disabilities which were incurred in or aggravated by active military service.

In the processing of this case, an advisory opinion (COPY ATTACHED) was obtained from the staff medical advisor.  He advised the Board that the applicant suffered head and knee injuries  in December 1990, was hospitalized, and subsequent examinations reported diagnoses of cervical and knee strains, and contusion.  There was no internal derangements or neurological damage.  There was nothing in the medical records to overcome the presumption of fitness and medically justify a change in the applicant’s discharge status.

The applicant was furnished a copy of the foregoing advisory opinion for possible rebuttal and no response has been received to date.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  The applicant’s military service was not interrupted by physical disability.  Notwithstanding the presence, or possible presence, of various medical conditions, there is no evidence of record, nor has the applicant provided sufficient evidence, which would indicate that she suffered from any medical condition of such severity that she was rendered unable to reasonably perform the duties of her office, rank, grade or rating.

2.  Over 2 years after the applicant was released from active duty the VA denied her claim of service connected disability.  The fact that the VA, some 7 years after her separation, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Army purposes.

3.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different law and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

4.  The Board concludes that the applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation. 

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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-07184/AR1999023896	
SUFFIX		
RECON		
DATE BOARDED	19990520	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	145.00	
2.	110.00	
3.	142.00	
4.		
5.		
6.