MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 January 1999                   
	DOCKET NUMBER:   AC96-10303
				   AR1999015686

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Robert W. Garrett		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:  In effect, that he should have been separated or retired by reason of physical disability.

APPLICANT STATES:  That the VA awarded him service connected disabilities retroactive to the month following his separation from active duty.

COUNSEL CONTENDS:  Counsel concurs in the applicant's presentation and requests that all reasonable doubt be resolved in the applicant's favor.

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

He enlisted and entered active duty on 25 August 1988.  He completed training in infantry, basic airborne, and ranger qualification and was assigned to the 75th Ranger Regiment.

On 20 December 1989 he participated in a combat jump in Panama and was awarded a bronze star for the parachute badge and the Combat Infantryman Badge.  In July 1991 he was reassigned as a medical specialist to the battalion headquarters.  In August and September 1991 he was the distinguished honor graduate at the Primary Leadership Development Course.  He was promoted to sergeant effective 1 August 1992 and on 20 August 1992 he reenlisted for 2 years.

The applicant was separated from active duty by reason of completion of required service on 19 August 1994 with an honorable characterization of service.  On his report of medical history at the time of separation he states that he is in good health but has painful joints, ear trouble, hay fever, asthma, shortness of breath, adverse reaction to drugs, painful shoulder, recurrent back pain, and foot trouble.  He also notes that he is in the process of applying for a VA disability.  The results of the examination for the purpose of separation note that he has a physical profile for asthma and is qualified for separation with a physical profile of 3/1/1/1/1/1.

Information made available by the VA shows that that agency made a rating decision on 19 September 1994 to provide a 20 percent disability for vocational rehabilitation purposes.  This rating was based solely on a review of his service medical records which showed treatment for chronic asthma which had existed since childhood but was considered by them to be aggravated by service and intermittent shoulder pain which he had been treated in service for.

In July 1995 the VA conducted a rating for the applicant for the purpose of establishing disability and compensation.  The evidence of record again consisted of his service medical records.  This review resulted in a rating of 10 percent for cervical spine injury, residuals healed fracture and 10 percent for asthma.  He was also rated at zero percent for rotator cuff injury to the left and right shoulder, low back strain, flat feet, hayfever, tinnitus, hearing loss, and lymph gland inflammation for a combined rating of 20 percent.

Following a VA medical examination on 21 November 1995 that agency increased his percent of disability to 30 percent for asthma, 20 percent for each shoulder rotator cuff injury, and his tinnitus was now rated at 10 percent.  The cervical spine injury remained at 10 percent and the other rated disabilities remained at zero percent for a combined total of 70 percent.

The applicant’s military medical records show that on his June 1988 entrance medical examination he denied any health problems including hayfever and asthma.  He was diagnosed with a mild case of flat feet and found fit for enlistment and airborne training.  A clinical record from February 1990 shows that he was examined for left shoulder pain.  He stated that he had injured his shoulder playing football 3 ½ years ago, prior to enlisting.  He was placed on a five day profile and provided pain medication.  During a physical examination for ranger training in August 1990 he again denied any health problems except for a P2 profile for asthma that he controls with an inhaler.  He was found fit for ranger training.  While at ranger training he was hospitalized for an asthma attack and given a P3 profile for pulmonary function.

In approximately June 1991 the applicant underwent a medical evaluation board (MEB) based on the P3 profile.  He stated that he wanted to continue on active duty and had not been injured while on active duty.  The MEB found him fit for duty.  In October 1991 he was evaluated by the allergy clinic for asthma.  The doctor, a Medical Corps colonel notes that the applicant had a history of asthma until the age of ten or twelve when he became asymptomatic.  He was found to be allergic to molds only.  The applicant stated that he runs more than two miles on his own without medications and uses his inhaler occasionally.  The doctor changed the profile to P2 with unlimited running, no restrictions on functional duties or the physical fitness test effective November 1991.

In January 1992 the applicant was again medically cleared for continued airborne and ranger assignments and duties.  He received cervical spine examinations in October 1993 and February and April 1994.  All three examinations were inconclusive for evidence of previous spinal injury and were considered basically normal and unremarkable for evidence of irregularities.

An audiometry examination was conducted in June 1994 and compared to a February 1989 reading.  It was determined that there had been no significant change to the applicant’s hearing since entry on active duty.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the medical advisor to the Army Review Boards Agency.  The opinion notes the applicant’s service medical history listed above with continued findings of fit for duty and recommends no change in his discharge status.  The applicant and counsel were provided copies of the advisory opinion but provided no additional evidence to the contrary.

Of additional significance concerning the applicant’s ability to perform his duties is his final NCOER for August 1994.  In Part IVc., physical fitness, the rater marked the excellence block indicating that he exceeds the standard.  It also shows that he passed the physical fitness test in June 1994 and had placed 3rd in the 1994 bodybuilding championship for the installation.  No assignment limitations were noted.

Army Regulation 40-501, 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.  Performance of duty despite impairment would be considered presumptive evidence of physical fitness.

Title 38, United States 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, and advisory opinion, 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 service medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  Neither the applicant nor counsel has submitted any probative medical evidence to the contrary.  The applicant's continued performance of duty raised a presumption of fitness that he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

3.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.

4.  Since the applicant's medical condition was not medically unfitting for retention at the time, in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

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

___LLS__  __RWG___  __CLG___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC96-10303/AR1999015686	
SUFFIX		
RECON		
DATE BOARDED	19990128	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	145.01	
2.		
3.		
4.		
5.		
6.