PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:          24 March 1999                    
	DOCKET NUMBER:  AR1999019863

	I certify that hereinafter is recorded the true and complete record of the proceedings 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 E. Vick		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Allen L. Raub		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military  records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, disability retirement or involuntary separation with entitlement to separation pay and award of a second Army Commendation Medal.  (Note:  The applicant’s file contains a 1994 application requesting that his records be corrected to reflect that he was involuntarily separated from active duty as a result of being overweight and as such entitled to separation pay.  There is no indication in available files that the request was ever acted on or that the applicant ever withdrew the original application.  In 1996 he submitted an application for disability retirement.  In view of the fact that it appears neither request was ever acted on, the applications have been combined and the Board will address both issues.)

3.  The applicant states in his 1994 application that he was overweight at the time of his separation from active duty and as such was precluded from reenlisting.  However, because his command improperly removed his “flagging action” he was prevented from receiving half separation pay as indicated in his original separation orders.  In support of his request he submits a copy of his final performance evaluation report indicating he was overweight and a copy of the original separation orders indicating entitlement to half separation pay.  In his 1996 application the applicant states that he was receiving disability pay from the VA and as such should, in effect, have been medically retired from active duty.  He notes that consideration should be given to correcting his records to show that he was medically retired “due to the length of time necessary to establish Persian Gulf War disability endorsed by Congress in November of 94” which he notes was after his separation from the Army.

4.  Records available to the Board indicate he initially entered active duty on 
28 October 1987 and performed duties as a saxophone player.  He reenlisted for a period of 4 years on 23 March 1990 which established his scheduled separation (ETS) date as 22 March 1994.  He served in Southwest Asia from August 1990 through March 1991.

5.  His service medical records indicate he was treated for a variety of ailments beginning in 1988 including, knee pain, lower back pain, foot trouble, insomnia, headaches, nausea and a rash.  His medical records contain only one temporary profile issued in September 1989 for “low back muscle strain.”  The profile expired approximately 10 days after it was issued.

6.  On 21 December 1993 the applicant was determined to exceed the Army’s weight control standards and his records were “flagged.”  The “flagging” action was signed on 23 December 1993.  (Note:  A “flagging” action prevents favorable personnel actions such as promotion and reenlistment.)  Although a 25 January 1994 weight control document indicates the applicant still exceeded the standards, he was making progress.  On 2 February 1994 his original “flag” was rescinded noting that he had been “erroneously flagged.”

7.  The applicant’s final performance evaluation, rendered on 3 February 1994, indicated the applicant was successfully performing his military duties and was “making some progress” in complying with the Army’s weight control program.

8.  The applicant’s original separation orders, issued on 7 January 1994, indicate he was authorized “separation pay” while a subsequent “correct copy” indicated he was not.

9.  The applicant indicated on his separation physical examination, conducted on 20 January 1994, that he suffered from a variety of ailments including such things as swollen or painful joints, frequent or severe headaches, eye trouble, hay fever, frequent indigestion, recurrent back pain, foot trouble, loss of memory and frequent trouble sleeping.  He did not indicate he suffered from depression or excessive worry, or any skin diseases.  The examining physician noted the applicant’s complaints but found him qualified for separation with a physical profile of 1-1-1-1-1-1.  His only recommendation was that the applicant exercise and lose weight.

10.  The applicant was awarded an Army Commendation Medal, his second, recognizing his meritorious service during the period 12 September 1991 through 22 March 1994.  Orders confirming the award were published at Fort Sam Houston, Texas.  On 22 March 1994, the applicant’s scheduled separation date, he was released from active duty and transferred to the Army Reserve.  His separation document reflects entitlement to only one Army Commendation Medal.  His separation and reenlistment eligibility code indicated he was voluntarily released from active duty and fully qualified for reenlistment.

11.  Subsequent to the applicant’s separation the VA granted him a combined service connected disability rating of 60 percent (50 percent for major depression and 10 percent for constipation and diarrhea due to an undiagnosed illness).

12.  Army Regulation 601-280, which establishes the policies and procedures for the retention of soldiers on active duty states that the “window” for reenlistment starts when the soldier is within 8 months of their ETS date and ends when the solider is 1 day inside of 3 months of ETS.  Soldiers who are more than 1 day inside of 3 months of their scheduled ETS date may reenlist only with prior approval from the Total Army Personnel Command.

13.  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.

14.  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.

15.  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.

CONCLUSIONS:

1.  The evidence confirms the applicant was awarded a second Army Commendation Medal, which was omitted from his separation document.  As such it would be appropriate to correct his record accordingly.

2.  While the applicant contends that he was prevented from reenlisting because he was “flagged” and as such was essentially involuntarily separated and thus entitled to separation pay, the evidence indicates the applicant took no action to reenlist within his window of opportunity.  His initial “flagging” action was signed on 23 December 1993, the day his reenlistment eligibility window closed.  Clearly had the applicant intended to remain on active duty he would have taken some steps to secure reenlistment prior to his last day of eligibility.  Additionally, there is no evidence that once the “flag” was removed, more than a month prior to his separation date, that the applicant took any action to secure authority to reenlist. Such evidence supports the conclusion that the applicant’s separation was in fact voluntary.

3.  The evidence indicates the applicant was voluntarily separated at his ETS and fully qualified to reenlist at the time.  As such there is no basis to grant entitlement to separation pay, or change his records to indicate that he was involuntarily released.

4.  It is unclear why two sets of orders were issued announcing the applicant’s separation but it appears it may have been merely a mistake and not an indication that the individual was, and then subsequently determined not to be entitled to separation pay.  Had his eligibility changed, rather than merely an error been made, it is more likely the orders would have been amended rather than a “corrected copy” issued.
5.  Although the applicant's separation physical noted several ailments his continued performance of duty until his separation from active duty in March 1994 raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness of injury concomitant with his separation.

6.  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.

7.  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. 

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 to permit correcting his records to reflect either entitlement to separation pay or disability retirement.

9.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was awarded two Army Commendation Medals.

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

___JEV__  __RWA__  __ALR__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999019863	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990324	
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         1.110.00		
2. 108.00		
3.		
4.		
5.		
6.