MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            4 March 1999   
	DOCKET NUMBER:   AC98-11591
				   AR1999016466

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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, the applicant requests physical disability retirement or separation.  

APPLICANT STATES:  That he should have been granted a physical disability discharge in lieu of “unsatisfactory performance”.  He has now been granted a service connected disability for bronchial asthma by the VA, which was the cause of his poor performance during the Army physical fitness test (APFT). 
  
EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Alabama Army National Guard on 27 August 1987, completed active duty for training, and on 20 February 1989 was discharged in order to enlist in the Regular Army.  He enlisted for four years on                       21 February 1989.  In March he was assigned to an artillery battery in Germany.

On 1 March 1991 the applicant was promoted to pay grade E-4.  On                     3 September 1991 the applicant was awarded the Army Achievement Medal.  
He was reassigned to Fort Sill, Oklahoma in October 1991.  

On 13 December 1991 the applicant was counseled for his failure to achieve a passing score on the APFT, in that he failed to achieve a passing score on the two mile run.  He was informed that a second failure would result in a bar to reenlistment. 

On 15 April 1992 the applicant was counseled for failure to complete a two mile run, and for evading the completion of physical training for that morning.  The applicant stated that he had just recently been taken off profile, and that it took him awhile [to get used to running), and that he also had asthma.

On 12 June 1992 the applicant was again counseled for failing the APFT again, in that he failed to achieve a passing score on the two mile run.  He was informed that because of this second consecutive failure he could be eliminated from the Army.  He was told that he would continue with remedial physical training.   

On 16 June 1992 the applicant was counseled again concerning his two AFPT failures and his failure to complete the two mile run on 15 April 1992.  

A 29 June 1992 report of mental status evaluation indicates that the applicant was mentally responsible, had the mental capacity to understand and participate in proceedings, and met the standards for retention in the Army.  The applicant was psychiatrically cleared for any administrative action deemed appropriate.

On 1 July 1992 the applicant received a bar to reenlistment because he failed two consecutive Army physical fitness tests (APFT), one on 13 December 1991 and one on 11 June 1992.    

On 28 July 1992 the applicant again failed the APFT, because of the his failure to achieve a passing score on the two mile run. 

On 21 August 1992 the applicant’s commanding officer informed the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, for consecutive APFT failures.  The applicant consulted with counsel and stated that he understood the basis for the contemplated action, its effects, and the rights available to him.  He declined to submit statements in his own behalf.

The applicant’s commanding officer then recommended to the separation authority that the applicant be separated from the Army.  He stated that the report of mental status evaluation and the report of medical examination was attached to his recommendation, and he informed the separation authority that the medical examiation indicated that the applicant had asthma and problems with his left knee and shoulder. 

On 31 August 1992 the separation authority approved the recommendation and directed that the applicant be issued an Honorable Discharge Certificate.
 
The applicant was discharged on 14 September 1992 for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  He had 3 years, 6 months, and 24 days of service.

A 17 January 1997 VA rating decision shows that the applicant was granted a    10 percent service connected disability for bronchial asthma effective                 15 September 1992.  That decision paper indicated that evidence showed that the applicant received intermittent inhalational or oral bronchodilator therapy.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 establishes policy and prescribes procedures for separating members for unsatisfactory performance.  That chapter states, in part, that commanders will separate a soldier for unsatisfactory performance, when it is clearly established that in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier, and it is likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur, and the ability of the soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely, and the soldier meets retention medical standards.  The service of soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.

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.

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, 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.  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.  The applicant had the opportunity to submit a statement in his own behalf when informed of the initiation of the separation proceedings, but declined to do so.  There is no evidence nor has the applicant submitted any, to show that he was not physically fit at the time of his discharge. His 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.

2.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

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.  The VA 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 he 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

5.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA 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.  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.

7.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

8.  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.

9.  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

___cwb__  _eb_____  ___rjw__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-11591/AR1999016466	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990304	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.