MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 October 1999                   
	DOCKET NUMBER:   AR1999017229

	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. George D. Paxson		Member	
	Ms. Kathleen A. Newman		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 her honorable discharge be changed to a medical discharge.

APPLICANT STATES:  That her medical records support giving her a medical discharge.  Supporting evidence is as listed on the DD Form 149.

EVIDENCE OF RECORD:  The applicant's military records are not available.  The information contained herein was obtained from her medical records, her VA claim decision and her DD Form 214.

The applicant enlisted in the Regular Army on 24 January 1978.  On 11 October 1990, she was given a permanent physical profile due to fusion of left great toe with pain and assignment limitations of no running and no pushups.  On 1 June 1995, she separated under the Special Separation Benefit (SSB) program.

In October 1997, the VA granted the applicant a combined disability rating of 50 percent.  It cannot be fully determined from the available documentation how the rating was arrived at.  The provided VA decision shows she was evaluated for 24 issues.  She was given a 10 percent rating for chronic low back pain, a 10 percent rating for left great toe bunionetomy, 8 issues were granted a 0 percent rating and service connection for the other issues was determined to be not well grounded.

The National Defense Authorization Act for Fiscal Year 1992, Public Law 102-190, 5 December 1991 established voluntary incentive programs to support the Army drawdown.  Eligible soldiers who applied for separation under the SSB were required to enter into a written agreement to serve in the Ready Reserve for a period of not less than 3 years.

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. 

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 applicant’s personnel records are not available and she provides no evidence to show that she was not fit for duty at the time of her separation.  Since she remained on active duty for 5 years after she was given a permanent physical profile and since she applied for a voluntary separation under the SSB, the Board presumes that she was fit for duty at the time of her separation.  Therefore, a medical separation is not appropriate.

3.  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 adjust its discharge accordingly.

4.  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___  __gdp___  __kan___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999017229	
SUFFIX		
RECON		
DATE BOARDED	19991027	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.