MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          11 February 1999 
	DOCKET NUMBER:   AR1999020482

	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:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Van B. Cunningham		Member	
	Ms. Carol Jo Suiter		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 or separation.  

APPLICANT STATES:  That he should have had the opportunity to go before a medical board in order to receive a disability rating from the Army for his ailments.  He states that he has been fighting this issue since 1974, and the issue concerning his rank.  He implies that his pay grade should have been E-4. He states that he had severe degenerative arthritis to his right wrist, and carotosis on both feet.  (NOTE:  His application to his Board is dated                 29 April 1998, and the information provided above is a letter attachment to his application, dated 29 September 1992).

The applicant says that he was treated at 97th General Hospital in Frankfurt, Germany, and states that he was not medically qualified for duty with permanent assignment limitations, but his physical profile was 1 1 1 1 1 1.  He implies that because of the rush to reassign him from Germany to Fort Jackson, South Carolina for separation, his medical condition was not properly evaluated.  He has since received VA compensation for his disability, his condition has worsened, and he cannot hold a job because of his inability to stand on his feet and the lack of use of his hands and wrist.

The applicant states that his unit commander did not sign the physical profile record and he implies that he did not get the benefit of a medical board for this reason.

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

A 12 May 1971 report of medical examination indicates that the applicant was medically qualified for enlistment in the Army with a physical profile of 1 1 1 1 1 1. In the report of medical history he furnished for the examination the applicant stated that the was in good health.  He stated that he had “corn on foot in the past.”

The applicant enlisted in the Army for three years on 17 May 1971, completed training, and was promoted to pay grade E-4.  In July 1972 was assigned to a maintenance unit in Germany as a small arms repairman.

Medical records going back to June 1971 from Madigan General Hospital in Tacoma, Washington indicate that he was treated for problems with his feet, i.e., 9 June 1971 medical entry, corns on both feet (EPTS) (existed prior to service).  He continued treatment for problems with his feet while stationed at Fort Lewis, and then in 1972 and 1973 in Germany.  He was seen on numerous occasions in the 97th General Hospital podiatry clinic in late 1972 and the first six months of 1973 for plantar keratoses, the clinical records showing his calluses were trimmed on his visits to that clinic.  Records show that he continued to complain of pain to his feet and wanted a profile for the pain to his feet.
On 17 August 1973 the applicant received nonjudicial punishment for disobeying a lawful order and for disrespect to an NCO.

On 18 October 1973 the applicant received nonjudicial punishment for altering an official form, and for violating lawful orders.  He was reduced to pay grade E-3.

In a 15 February 1974 report of medical examination, the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1.  That examination revealed that the applicant had plantar keratoses of his feet, and an old fracture of his right wrist.  

On 19 February 1974 the applicant was barred from reenlistment.

A 21 February 1974 medical record indicates that the applicant stated that his right wrist was very painful for unknown reasons; there was no history of a recent injury.

In a 20 March 1974 clinical record a medical official at a Army dispensary in Aschaffenburg requested that the applicant’s right wrist condition be evaluated because the applicant was separating from the service (ETS).  That official indicated that the applicant injured his wrist in October 1972 and did not see a doctor or get X-rays.  The applicant stated that since then he had recurrent right wrist pain on lifting.  The applicant’s right wrist condition was evaluated at the orthopedic clinic at 97th General Hospital on 2 April 1974 and he was cleared for separation with a U-3 profile. 

A 2 April 1974 physical profile record prepared at the 97th General Hospital shows that the applicant had a profile for severe degenerative arthritis for his right wrist, that he was medically qualified for duty with the restriction that he could do no heavy lifting with his right arm over 25 pounds.  That record shows that he was returned to duty with his unit.  That record was not signed by his unit commander.

The applicant was returned to the United States and separated from the Army (as an early separation of an oversea returnee) on 7 May 1974.  He was separated in the pay grade of E-3 with an honorable character of service.  He had 2 years, 11 months, and 20 days of service.

In a 24 July 1975 VA medical record the applicant’s condition was diagnosed as injury to his right wrist with changes in the carpal bones of the right wrist, limitation of motion as compared to the left, and degenerative arthritis changes; pes planus; tinea cruris; tinea corporis; and plantar keratoses.  On                       4 September 1975 the VA awarded the applicant a 10 percent service connected disability rating for his right wrist injury with degenerative arthritic changes, a zero percent rating for plantar keratosis; and determined that he had non service connected disabilities for tinea cruris; tinea corporis; and pes planus.

A 1982 VA medical record shows that the applicant had plantar lesions on both feet, which the applicant stated resulted from his military service, for which he wanted disability compensation.  The examining physician stated that he should be evaluated for possible disability. 

On 9 April 1982 the VA continued the 10 percent rating for his right wrist but stated that the pain he experienced on walking was not due to his plantar keratois, but due to his nonservice connected foot condition. 

A 20 August 1987 VA rating decision awarded the applicant a 30 percent service connected disability rating for residuals of injury to his right wrist with traumatic arthritis, and a 10 percent rating for plantar keratosis.

The records show that the applicant made numerous applications to this Board, the earliest on record dated 17 March 1983, one in May and one in June 1983, requesting physical disability retirement or separation.  A 13 January 1984 letter to the applicant informed him that his application had been denied; however, a copy of the Board record is not available.  In a reply to that letter, he stated on   11 August 1984 that he was released from active duty because of his medical condition. 

In a 16 January 1984 letter to the applicant a member of this agency informed him that his late 1983 letter had been accepted as a request for reconsideration; however, his request was not considered because of lack of evidence. 
 
He made application again in April 1984, and in addition to asking for physical disability retirement or separation, also asked that his record show his proper rank and award of the Purple Heart.  On 23 January 1985 he was informed that his application was accepted as a request for reconsideration, but not considered because of lack of evidence.  A similar response was forwarded to him on          25 March 1985 in response to his 29 January 1985 letter.  On 28 July 1987 a member of this agency informed him that his 1986 application had been received (NOTE:  There is no record of this application).

He applied again on 10 October 1989, requesting physical disability retirement or separation, a rank change on his DD Form 214, and the Purple Heart.  He was informed on 3 September 1992, again, that he had not submitted any new material evidence or other relevant matter and his request was not considered by the Board. 

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 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.

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 rank of PFC pay grade E-3 upon his separation from the Army as shown on his DD Form 214 is correct.  This applicant was reduced to that rank on 18 October 1973.  He has provided no evidence or good argument that his rank should be otherwise.

2.  Service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  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 because he had completed his active duty service obligation.

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.

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

6.  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.
  
7.  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.

8.  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.

9.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

10.  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

___inw_  ___vbc__  ____cjs_  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020482	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990211	
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.  110.00		
3.  131.00		
4.		
5.		
6.