MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            28 October 1998                  
	DOCKET NUMBER:   AC98-10376

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Calvin M. Fowler		Member	
	Mr. Raymond V. O’Connor		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 discharge be corrected to a medical retirement.  He also requests that the Additional Skill identifier (ASI) “V4” be added to his DD Form 214, as well as the school he attended to qualify for that ASI.

APPLICANT STATES:  That he should have been considered by a Medical Evaluation Board (MEB) before the Army accepted his request for Special Separation Benefits (SSB). 

In support of his application he submits his VA rating decision wherein he was awarded 20 percent disabled for residuals of neck injury and 20 percent disabled for residuals of low back injury with radiculopathy left leg.  Those conditions were considered to have been caused by motor vehicle accidents in 1987 and in August 1993.

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

He enlisted in the Regular Army on 28 July 1982, was awarded the military occupational specialties (MOS) of mobile subscriber equipment network switching system operator and multichannel communications system operator, and was promoted to pay grade E-5.

On 9 June 1993 orders were issued awarding the applicant ASI V4 (mobile subscriber equipment systems control center operations signal center) effective 23 June 1993 or upon completion of the required training.  The applicant’s records do not contain any record of him completing that course, such as a certificate of graduation or an academic evaluation report (AER) for the school.

On 26 August 1993 the applicant requested early separation from the Army with payment of a cash SSB.  He was given a separation physical examination at that time, in which his neck and back problems were listed and considered, and was determined medically qualified.

That request was approved and on 1 July 1994 the applicant was honorably released from active duty and transferred to an ARNG unit.

On 3 February 1996 a Medical Duty Review Board (MDRB) was convened by the ARNG to determine the applicant’s medical qualifications for retention.  The MDRB found the applicant medically disqualified for retention and for duty in his MOS.  It also determined that the applicant was not deployable.  The MDRB recommended that the applicant be separated from the ARNG.

The applicant requested continuation in an active status in the ARNG with his medical disqualification.  In that request the applicant stated that “I have performed both of those duties [of his two MOS’s] with excellent reviews on every past NCOER” and “I am capable of maintaining myself in a normal military environment without adversely affecting my health and the health of others”, and “I am physically capable of performing useful duty in an MOS for which currently qualified or potentially trainable.”  In support of his request he submitted a statement from his supervisor while he was in the Regular Army.  He stated that “at no time did I feel that [the applicant’s] condition interfered with his job performance in any way.”

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.    In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career. 

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Title 10, United States Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

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

1.  The applicant was determined medically qualified during his separation physical examination.  The physician conducting that examination had been aware of the applicant’s medical history of back and neck problems when he made that determination.

2.  Without a finding of medical disqualification, there was no basis to refer the applicant to an MEB or a PEB or to consider him for a medical retirement.

3.  If the applicant had been referred to a PEB, all indications are that he would have been determined physically fit for duty.  The applicant himself stated in his request for retention in the ARNG that he was completely capable of performing his duties, and submitted a letter from his Regular Army supervisor which shows that he was able to perform his duties while he was on active duty.

4.  In addition, the applicant had already ended his military career by accepting the SSB.  There was no loss of career for which to compensate him.

5.  As for the applicant’s request to add the ASI V4, and the school which he attended to qualify for the ASI, to his DD Form 214, there is no evidence that he ever completed that course.  The orders awarding him the ASI were published ahead of time, as is the custom for such courses.  Satisfactory completion of the course must be substantiated by an AER or certificate of graduation.

6.  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_____  CMF____  RVO____  DENY APPLICATION

					Edmund P. Mercanti	
						Loren G. Harrell
						Director