MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            11 March 1999 
	DOCKET NUMBER:    AC98-11108
                                               AR1998014387

	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. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Van B. Cunningham		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:  That he be granted a medical retirement.

APPLICANT STATES:  That at the time of his separation he met the criteria for a permanent disability retirement because he had less than 20 years of active service and was medically unfit for continued military service due to a disability greater than 20 percent disabling.  He contends that he intended to appeal the physical evaluation board decision but was advised to go to the Veterans Administration (VA) for relief.

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

He enlisted in the Army National Guard of the District of Columbia on 14 June 1977 for 6 years.  He successfully completed his initial training and was assigned duty as a fabric repairman (43M).  He was involuntarily ordered to active duty on 21 June 1979 and assigned to Fort Bliss, Texas.  He served in a series of assignments both in the United States and overseas and attained the rank of sergeant (E-5).

On 22 September 1989 the applicant was given a permanent profile for acne keloidalis nuchae; degenerative joint disease, both wrists; and left knee and left foot pain.  The profile directed that he was not to clip the hair on the nape of his neck closer than ¼ inch and that he should avoid exposure to cold weather under 20 degrees for periods over one hour.

On 13 December 1989 a military occupational specialty/medical retention board (MOS/MRB) determined that the applicant’s physical limitations were too restrictive for reclassification into any available MOS and referred his case to the United States Army Disability System for evaluation. 

On 23 April 1990 a medical evaluation board (MEB) convened to evaluate the applicant’s medical condition.  It found that the applicant suffered from cold intolerance, bilateral wrists and feet.  The MEB recommended that the applicant be referred to a physical evaluation board (PEB).  The applicant indicated that he desired to remain on active duty, and concurred with the MED findings and recommendation.

On 7 May 1990 a PEB convened to consider the applicant’s medical condition.  It found him to be suffering from Raynaud’s disease, cold intolerance, bilateral wrists and feet.  The PEB found him to be unfit for active duty and recommended a combined disability rating of 10 percent and separation with severance pay if otherwise qualified.  The applicant did not concur and demanded a formal hearing.

On 20 June 1990 a formal PEB convened and found the applicant unfit for duty and recommended a combined disability rating of 20 percent.  The applicant did not concur with the board findings, however, he did not desire to submit a rebuttal.

On 23 August 1990 the applicant was honorably discharged from the Army under the provisions of Army Regulation 635-40 paragraph 4-24e(3), for physical disability with severance pay.  He completed 11 years, 5 months and 12 days of creditable active service.

A rating decision by the Department of Veterans Affairs (VA) as to service connection and percentage of disability is not available to the Board.

Army Regulation 635-40 sets forth the basic authority for the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph 4-24e(3) provides for separation for physical disability with severance pay.

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 38, U.S.C., 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.

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’s separation for disability with severance pay based upon a 20 percent disability rating was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The applicant has not provided any evidence of having received a VA disability rating higher than that awarded by the Army.  However, a rating higher than 20 percent by the VA would not establish entitlement to medical retirement or separation from the Army.

3.  The applicant’s medical condition was evaluated by an MEB, an informal PEB and a formal PEB, all of which found him unfit for duty.  The formal PEB found his disability to be only 20 percent disabling.

4.  Disability Retirement was precluded since the applicant had not completed 20 years or more active service and his disability was rated at less than 30 percent.

5.  The applicant has not provided any substantiating evidence to support his contention that his medical condition warranted disability retirement.

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

____X____  ___X_____  ___X_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-11108/AR1998014387	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990311	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19900823	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.