MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 January 1999    
	DOCKET NUMBER:   AC98-11109
				   AR1999017677

	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. 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, physical disability retirement.  

APPLICANT STATES:  That he should have been medically retired because the VA awarded him a 30 percent disability rating retroactive to his discharge date.

COUNSEL CONTENDS:

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

The applicant served in the Air Force for almost six years and was discharged from that service on 22 January 1983.  On 21 May 1985 he enlisted in the Army for three years in the pay grade of E-4, reenlisting in 1998, and reenlisting again for three years in the pay grade of E-6 on 7 November 1989.

The applicant received an Army Commendation Medal for his service as an instructor at Fort Knox, Kentucky, from 17 January 1990 to 15 September 1992.

The applicant’s evaluation report for the period June 1992 through September 1992  indicates that both his rater and his senior rater considered him among the best NCO’s for performance and potential.  In that portion of the report concerning physical fitness, his rater stated that he passed the physical fitness test, that he displayed strong mental and physical flexibility, and that his profile did not hinder his duty performance. 

On 12 May 1992 the Total Army Personnel Command (PERSCOM) approved the applicant’s request for voluntary separation through the FY92 enlisted voluntary early transition program with a special separation benefit (SSB).

An 18 May 1992 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile code of 1 1 3 2 1 1.  In the report of medical history he furnished for the examination, the applicant stated that he was in fair health. 

On 11 June 1992 the applicant requested that his release date (from the Army) be changed from 19 September to 2 September 1992.    

On 28 August 1992 the applicant entered into an agreement to enlist in the Army Reserve for three years.  

On 2 September 1992 the applicant was discharged from the Army under the provisions of Army Regulation 635-200, paragraph 16-8, under the FY92 enlisted voluntary early transition program.  He was discharged in the pay grade of E-6, and had 7 years, 3 months, and 12 days of service.  The applicant was authorized a SSB payment in the amount of $40,482.99.

On 3 September 1992 the applicant enlisted in the Army Reserve for three years and was assigned to the Army Reserve Control Group (Reinforcement) at St. Louis.  He was discharged from the Army Reserve on 21 June 1994.

In a 12 January 1994 letter the VA informed the applicant that it was amending his disability compensation award.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 16-8 of that regulation concerns early separation due to reduction in force, strength limitations, or budgetary constraints, and states, in effect, that when authorization limitations, strength restrictions, or budgetary constraints require the size of the enlisted force to be reduced, the Secretary of the Army, or his designee, will authorize voluntary or involuntary early separation.  The Commander, Total Army Personnel Command (PERSCOM) will implement this program by issuing separation instructions pertaining to a specific class or category of soldiers.  Early separation under this paragraph is for the convenience of the government.  Personnel separated under this paragraph will be discharged or released from active duty, as appropriate.

In late 1991 and early 1992 the PERSCOM announced implementing instructions for the FY 92 enlisted voluntary early transition program and provided for the voluntary  release from active duty for specific categories of soldiers with monetary incentives authorized.  One of these incentives was a SSB, a lump sum payment equal to 15 percent of the soldier’s basic monthly pay, multiplied by 12 and multiplied again by the soldier’s years of service.

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.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

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(s), it is concluded:

1.  The applicant’s separation was at his own request, under the provisions of the Army enlisted voluntary transition program.  His performance, as indicated by the award of the Army Commendation Medal and by his NCO evaluation report prior to his discharge, indicates that he was fit for duty and not physically impaired from performing that duty.

2.  At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.  

3.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary.

4.  The applicant's 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.  He did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

5.  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.

6.  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.

7.  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 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, 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.

8.  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	AC9811109/AR1999017677	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990128	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.108.00		
2.		
3.		
4.		
5.		
6.