MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 March l999                  
	DOCKET NUMBER:   AC94-09254A
                                              AR1998000705

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Frank K. McCoy		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Kenneth L. Wright		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, correction of his military records to show that he was retired for a physical disability in June 1988 rather than an honorable discharge for unsatisfactory performance.

APPLICANT STATES:  In essence, that he was on a permanent medical profile at the time of his separation from active duty.  He had failed the over-40 physical examination and had many medical problems.  His military and Department of Veteran Affairs (DVA) medical records have been obtained and are included herewith.  

COUNSEL CONTENDS:  That despite the applicant’s discharge with a Department of the Army (DA) imposed bar to reenlistment under the provisions of chapter 13, Army Regulation 635-200, by reason of unsatisfactory performance, he had many medical problems.  He has subsequently received DVA combined disability ratings of 30 percent disabled for service connected disabilities effective the day after his separation from active duty.  Counsel fully supports the applicant’s request.

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

He had prior active and inactive service in the Army Reserve (USAR) from November 1972 through June 1976.  His primary military occupational specialties (MOS’s) were MOS 63B (Wheeled Vehicle Mechanic) and MOS 63C (Tracked Vehicle Mechanic).  On 29 June 1976, the applicant was involuntarily ordered to active duty from the USAR.  On 17 February 1977, he enlisted in the Regular Army (RA) for 3 years, in pay grade E-3.  His service thereafter was continuous in the RA.

His service consisted primarily of duties as a Wheeled Vehicle Mechanic, a Power Generator and Wheeled Vehicle Mechanic, a Motor Sergeant and an Instructor/Administrative Noncommissioned Officer (NCO).  He was advanced through the ranks and was promoted to the rank of staff sergeant on 
5 September 1983.  

On 13 January 1987, he was advised that a DA imposed bar to reenlistment had been imposed for lack of demonstrated potential for continued service.  Five NCO evaluation reports (NCOER), covering the period August 1982 through August 1985 were cited as the basis for the bar.  He was advised that he could appeal the bar.

On 16 November 1987, the applicant appealed the bar to reenlistment citing a pending appeal of one of the NCOER’s, and other incorrect/incomplete listings of his performance of duties as a motor sergeant between June 1983 and January 1985.  He also included a recent NCOER which he stated showed his consistent efforts to improve and to utilize his training to the benefit of the Army.  The applicant then submitted a summary of the reasons for deficiencies in each of the five NCOER’s cited as the basis for the bar to reenlistment.  He then states that there has been a marked improvement in all his NCOER’s from 1981.  He submitted a number of statement in support of his appeal from senior officers and civilian employees with whom he worked.

The applicant’s entire chain of command recommended disapproval of his appeal.  On 18 February 1988, the Department of the Army informed the applicant that his appeal was denied and that separation action would be initiated by his command not later than l April 1988.

On 10 March 1988, in connection with his separation physical examination, he underwent a Mental Status Evaluation and was found psychiatrically cleared for separation.  On l5 March 1988, he underwent a medical examination and was medically cleared for separation.

On 14 March 1988, the applicant’s command formally notified him that separation action under the provisions of chapter 13, Army Regulation 635-200 for unsatisfactory performance, based upon the DA imposed bar to reenlistment, was being initiated.  He was informed that an honorable discharge would be recommended. The applicant consulted with legal counsel and waived his right to appear before a hearing by a board of officers.  His chain of command recommended approval and on 25 May 1988, the separation authority approved the discharge with an honorable discharge.

On 3 June 1988, the applicant was discharged from active duty with an honorable discharge, under the provisions of chapter 13, Army Regulation 
635-200, by reason of unsatisfactory performance.  He was credited with 
12 years, 5 months and 7 days active service and 3 years, 1 month and 23 days inactive service (USAR).  

A review of the applicant’s limited military medical records, and historical medical summaries prepared by the Department of Veteran Affairs (DVA), indicate that a hearing loss was evidenced from as far back as 1982/1983.  He first experienced medical problems with his right knee in 1983, and he received periodic evaluations and physical therapy.  He developed lower back strain problems in 1984.  In early 1987 the pain got worse and he experienced some numbness.  He underwent further examinations, physical therapy for his back pain and numbness in his right lower extremity.  Also, examinations and physical therapy  treatment was given for left shoulder and arm soreness.  X-ray’s and bone scans in June 1987 failed to show any major problems in his spine.  In September 
1987 he complained of problems with his left lower extremity/knee.  Further tests and evaluations in early 1988 resulted in a diagnosis of degenerative joint disease of his knees and hips.  The applicant also had elevated cholesterol and triglyceride levels in 1987 and some reports of chest pains.  He apparently had not passed the over-40 physical examination at the time of his separation from active duty.  However, he was given a 3 profile for his lower extremities with restrictions as to no pushups or situps, and to run at his own pace and tolerance. 

Subsequent to his separation from active duty, the DVA initially gave him a 
20 percent service connected disability rating for tendonitis, left shoulder, from 
4 June 1988.  Zero percent ratings were given for high frequency sensorineural hearing loss, left ear;  retropatellar (knee) syndrome, left and right;  and for lumbosacral strain.  Service connected disabilities were denied for claims for a hearing loss to the right ear;  for elevated cholesterol/triglycerides/hypertension/
organic heart disease;  for lung disease;  and for arthritis, both hips.  

He has been periodically seen and evaluated by the DVA, and currently has a combined 40 percent disability rating, 20 percent for the tendonitis and 
20 percent for lumbosacral strain with disc bulging, the latter rating from 
12 August 1991.  One additional condition has been rated at 0 percent disabling, xanthomatosis under the eyes.  

The medical advisor to this Board has reviewed the applicant’s records and has opined (COPY ATTACHED) that there are insufficient military medical records available to made a definitive determination in the case.  There is insufficient evidence available to show that he was precluded from worldwide deployment or that his case warranted referral of his case to a Medical Evaluation Board (MEBD).  The medical advisor stated that if more information was available, such as an orthopedic work up, the results of a bone scan supposedly done in early 1988 and/or whether he was ever referred to a MOS/Medical Reclassification Board as it was indicated in his records that he would be, then a fair, impartial and complete review of the case could be accomplished.  

These comments were referred to the applicant for review and rebuttal, if desired.  He failed to respond or to provide answers to the questions from the Board’s medical advisor.  

Army Regulation 601-280, chapter 10, sets forth policy and prescribes procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  It is designed to (1) enhance quality of the career enlisted force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service. The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram.  Under the qualitative screening subprogram, records for grades
 E-5 through E-9 are regularly screened by the DA promotion selection boards.  The appropriate selection boards evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted.  Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  
An honorable or general discharge, under honorable conditions are authorized.  

Title l0, United States Code, at chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501, at paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his 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, section 3l0 and 33l, permits the DVA to award compensation for a medical condition(s) which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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 DVA 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, and advisory opinion(s), it is concluded:

1.  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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The medical evidence of record indicates that the applicant was found medically fit for separation at the time of his medical examination in March 1988. In the absence of evidence otherwise, the Board must presume regularity in Government operations and concludes that no basis has been provided to show that he was unfit for duty.

4. The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

5.  An award of a DVA rating does not establish entitlement to medical retirement or separation.  The DVA is not required to find unfitness for duty.  Operating under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the DVA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

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

__KLW__  __MW_ _  __FCM__   DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC94-09254/AR19980007205	
SUFFIX	A	
RECON		
DATE BOARDED	19990310	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19880603	
DISCHARGE AUTHORITY	AR635-200, C13	
DISCHARGE REASON	A49.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	110.02	
2.	135.00	
3.	A01.13	
4.	A92.00	
5.	A07.20	
6.