MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 December 1999                 
	DOCKET NUMBER:   AR1999014721

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Elzey J. Arledge, Jr.		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, reconsideration of his request to change his discharge to a physical disability retirement.

APPLICANT STATES:  That during his active service he was disabled due to a duodenal ulcer and a neuropsychiatric nervous disorder.  During his last tour in the Army National Guard he was told he was unfit to continue on active duty because the Veterans Administration (VA) increased his disability from 10 to 30 percent.  It was increased to 70 percent in 1965 and to 100 percent in 1968.  He provides his VA medical records as supporting evidence.

NEW EVIDENCE OR INFORMATION:  The applicant's case is reopened in accordance with the Army Board for Correction of Military Records Reconsideration Project (ABCMR-RP) criteria.  No memorandum reflecting the evidence and argument considered is currently available.  Therefore, the case is considered de novo.  The applicant’s records were lost or destroyed in the National Personnel Records Center fire in 1973.  The information contained herein was obtained from alternate sources.

After having had prior service from 4 September 1949 – 3 July 1952 (which appears to have been inactive service in the Army National Guard), the applicant was inducted into the Army on 18 September 1952.  He served in Korea and was held a prisoner of war for approximately 59 days.  (He was awarded the Prisoner of War Medal).

On an unknown date, while at the 343d General Hospital, APO 43, the applicant was given a permanent physical profile for a duodenal ulcer without obstruction.  He was returned to his unit and considered unfit for return to full duty.  He was not fitted for “field duty where regular (eating?) habits could not be maintained.”

On 9 April 1954, while at Rodriguez Army Hospital, Puerto Rico, the applicant was given a permanent physical profile for a healed duodenal ulcer.  His assignment limitations were listed as “E. M. should have garrison mess facilities available to him.”

On 17 September 1954, the applicant was released from active duty and transferred to the U. S. Army Reserve upon completing his active duty term of service for completion of his eight-year military service obligation (making his terminal military obligation approximately November 1957).  

The evidence of record shows the applicant served in the U. S. Army Reserve from 18 September 1952 to 11 December 1954 and in the Army National Guard from 12 December 1954 until 15 March 1955.  A statement of service prepared by the Army National Guard states he was discharged at this time due to his having a disability pension.

On 26 October 1955, the VA awarded the applicant a 10 percent disability rating for his duodenal ulcer and nervous conditions.  This action did not change the amount of compensation he was already receiving.

On 27 April 1956, the applicant signed a statement waiving disability compensation.  In his statement he stated, “I,…a member of the National Guard of Puerto Rico, hereby waive sixty-three (63) days of disability compensation for the FY 56-57, while participating in authorized training as a member of the federally recognized National Guard…”

A statement of service shows the applicant performed 15 days of active duty or active duty for training during fiscal years 1956, 1957, 1958, 1959, and 1960.  He was discharged from the Army National Guard on 18 August 1960.  His NGB Form 22 shows the reason for discharge as “Incompatible Occupation.”

The VA increased the applicant’s compensation to 70 percent in August 1965 for schizophrenic reaction, undifferentiated type, chronic, competent, a maturation of previously diagnosed anxiety reaction with gastrointestinal somatization and duodenal ulcer disease.  His compensation was later upgraded to 100 percent.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  In pertinent part it states that although the ability of a soldier to reasonably perform his duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (world-wide deployability) will not serve as the sole basis for a finding of unfitness.

Title 38, U. S. Code, 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.  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 VA 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, 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 rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify the type of discharge given accordingly. 

3.  The Board notes that the applicant’s physical profile only limited his return to full duty.  His only limitations were to have garrison mess facilities available and to avoid field duty where regular eating habits could not be maintained.  By regulation, this limitation did not make him unfit for duty.  In addition, the Board notes that he felt himself fit enough for duty to waive disability compensation in 1956 in order to continue serving in the Army National Guard to include performing annual training for the next five years.

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__mkp___  __aao___  __eja___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999014721	
SUFFIX		
RECON		
DATE BOARDED	19991201	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.