MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            25 February 1999                  
	DOCKET NUMBER:   AR1999017384

	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	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Mr. Samuel Calderon		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:  Disability retirement vice regular retirement.

APPLICANT STATES:  In effect, that after his discharge the VA granted him a 30 percent disability rating for “myocardial infraction and coronary artery bypass graft” and a noncompensatory rating for two other conditions, which he believes justifies changing his discharge to a medical retirement.

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

He entered the US Naval Reserve in 1959 and served nearly 9 years of active duty with the Navy between 1962 and 1971.  In 1973 he enlisted in the Army National Guard and in 1980 was called to active duty.  On 30 September 1995 the applicant retired with more than 25 years of active military service and more than 33 years for pay purposes.

Copies of the applicant’s performance evaluation reports indicate he had a very successful military career resulting in his promotion to pay grade E-8 in 1993, award of numerous decorations, and a final assignment as an infantry unit first sergeant. 

Subsequent to his separation the VA granted him a 30 percent disability rating for arteriosclerotic cardiovascular disease.  Additionally, although his kidney stone and herniated nucleus pulposus were determined to be service connected they were rated as 0 percent disabling by the VA.  The VA decision document noted the:

“Veteran had a myocardial infarction in 09-93.  He was later found to have two vessel disease by cardiac cath in 10-93.  In 05-94, he underwent coronary artery bypass grafting times three vessels.  Follow-ups showed the veteran did well post-operatively.  Retirement examination of 07-95 showed cardiac examination was within normal limits.”

Title 10, United States Code, chapter 61, provides 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 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 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an 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.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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.  Although the applicant may have had a heart condition while on active duty, his continued performance of duty until his retirement from active 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 evidence of record indicates that retirement examination in July 1995 showed that his cardiac examination was within normal limits and as such the applicant did not have any medically unfitting disability, which required physical disability processing.  Therefore, there is no basis for physical disability retirement.

3.  The fact that the VA granted a service connected disability rating does not necessarily demonstrate any error or injustice by the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its reason or authority for separation. 

4.  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.

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

__jma___  ___jlp__  ___sc_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999017384	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990225	
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.