MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           10 March l999                  
	DOCKET NUMBER:   AC98-06577
                                              AR1998000707

	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 separated for a physical disability. 

APPLICANT STATES:  In essence, that the Department of Veteran Affairs (DVA) has rated him as disabled with a service connected disability lung condition as the result of exposure to Agent Orange.  He was denied a “military hop (space available travel on a military aircraft)” because he did not have a retired military identification card, only a military dependent’s card.  He submits extracts of DVA rating decisions which show that he is considered 90 percent disabled by the DVA  for four service connected medical conditions.  Military medical records and DVA medical records have been obtained and are included with the case.

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

He enlisted in the Regular Army on 4 January 1967 for 3 years.  He was trained in military occupational specialty (MOS) 62B (Engineer Equipment Repairman). He had 2 days lost time from 15-16 April 1967 while still in training.  He received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice.  He was to forfeit $15.00, extra duty and restriction.  He had no other recorded indisciplines and the highest rank he attained was specialist four, pay grade E-4.

He served in the Republic of Vietnam (RVN) from 8 August 1967 through 28 July 1968.  He then was returned to the United States and served at Fort Lee, Virginia.  While at Fort Lee, he had a sebaceous cyst removed from his neck

On 3 November 1969, in connection with his separation from active duty, he underwent a physical examination.  He was found medically fit for separation and the scar from the removal of cyst on his neck was noted.  

On 5 January 1970, the applicant was honorably released from active duty, by reason of the expiration of his term of service (ETS) and he was transferred to the Army Reserve (USAR) to complete his service obligation.  He was credited with 3 years active service and he had 2 days lost time.  On 1 January 1973, the applicant was honorably discharged from the USAR.  

The applicant’s DVA records show that he has undergone a number of medical examinations, evaluations and has been given a number of disability ratings from that agency between 1984 and 1998.  They include a 10 percent disability rating for Acne Vulgaris from l October 1984;  a 10 percent disability for Tinnitus from 
23 March 1989;  a 60 percent disability rating for lung cancer (removal of right lung in 1992) from 6 September 1994;  and a 10 percent disabled rating for Posttraumatic Stress Disorder (PTSD) from 18 July 1991, later adjusted to 
70 percent disabled from 26 March 1997.  A request for service connection for exposure to herbicides was denied by the DVA on 1 September 1994, but service connection for lung cancer secondary to exposure to Agent Orange was established from 6 September 1994.  He was given a combined service connected disability rating of 90 percent disabled on 29 March 1997.  In December 1998, he was found to be 100 percent unemployable.    

The medical advisor to the Board has provided an advisory opinion (COPY ATTACHED) which essentially states that the applicant was medically fit at the time of separation from active duty.  Therefore, there is no medical reason to change the discharge.

The advisory opinion was referred to the applicant for his review and rebuttal, if he so desired.  He failed to respond.  

Title 10, United States Code, 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 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.

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 has failed to submit evidence that would satisfy the aforementioned requirement

2.  The evidence of record shows that the applicant served on active duty for 
3 years and when he was being separated at his ETS, he was found to be medically fit for separation or retention.  This is supported by the advisory opinion from the Board’s medical advisor.  

3.  Since there was no medically unfitting condition warranting physical disability processing at the time of his separation from active duty, no basis for physical disability retirement or separation of the applicant has been established.  

4, 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.

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

_KLW___  __MW  __  __FKM__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC9806577/AR1998000707	
SUFFIX		
RECON		
DATE BOARDED	19990310	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19700105	
DISCHARGE AUTHORITY	AR635-200, C2	
DISCHARGE REASON	A03.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.02	
2.	108.00	
3.		
4.		
5.		
6.