MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 September 1999  
	DOCKET NUMBER:   AR1999019679

	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. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Kenneth L. Wright		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, disability separation or retirement.  He also asks that the payment he received for accrued leave be excluded from the amount of severance pay noted in item 18 (remarks) on his DD Form 214.

APPLICANT STATES:  In effect, that the VA has granted him service-connected disability for his back condition, hypertension and PTSD.  He also notes that because he is receiving disability compensation from the VA he is required to “pay-back” his severance pay but states that the re-coupment should not include the monies he received for payment of his accrued leave.  The applicant believes his accrued leave payment is included in his severance pay amount reflected in item 18 on his separation document.

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

He entered active duty on 17 November 1978 and served continuously until 
20 July 1996 when he was separated as a result of a DA imposed bar to reenlistment.  His DD Form 214 notes that he received payment for 52.5 days of accrued leave and item 18 (remarks) indicates he received more than $20,000 in severance pay as a result of his involuntary separation.

A copy of the applicant’s final payment voucher indicates that his $3,511.62 accrued leave payment was not included in the more than $20,000 severance pay amount reflected in item 18 of his DD Form 214.

Subsequent to the applicant’s separation the VA awarded him a combined service connected disability rating of 50 percent.

Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonable perform because of a physical disability incurred or aggravated in service.  When a solider is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty. 

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.  The evidence confirms that the applicant’s accrued leave payment was not included in the severance pay amount reflected in item 18 of the applicant’s DD Form 214.

2.  Although the applicant may have served on active duty with several ailments his continued performance of duty until his separation from active duty in July 1996 raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness of injury concomitant with his separation.

3.  The evidence of record indicates he did not have any medically unfitting disability, which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

4.  A rating action by the VA 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.

5.  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.

6.  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

__sk____  __jea___  ___klw__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999019679	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990901	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 110.00		
2. 108.00		
3.		
4.		
5.		
6.