MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:	 

	BOARD DATE:           1 December 1999 
	DOCKET NUMBER:  AR1999020802

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Elzey J. Arledge		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:  Reconsideration of his previous application to correct his records by granted physical disability retirement.

APPLICANT STATES:  In effect, that he was improperly removed from the Temporary Disability Retired List (TDRL) and not granted physical disability retirement due to his being a minister.

NEW EVIDENCE OR INFORMATION:  The applicant’s case is reopened in accordance with the Army Board for Correction of Military Records Reconsideration Project (ABCMR-RP) criteria.  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 9 February 1999 (COPY ATTACHED).  The applicant’s interim request was administratively closed.

The applicant’s interim request indirectly contained a request for physical disability retirement, which was not addressed as such.  It is therefore appropriate to refer this new issue to the Board for review.

The current application does not contain any information or evidence that was not in the record at the time of the prior requests for review.  The applicant avers that the formal Physical Review Board hearing dealt with his civilian status and its affect on his civilian employment as opposed to the affect on his military career.

The applicant, a dual status Reserve officer on active duty as a RA enlisted soldier, sustained a back injury on 14 August 1989 during phase II of the Chaplain's Assistant Program.  The applicant was placed on the TDRL at a 40% disability level on 10 January 1990.  His condition was reviewed by the PEB and the disability level was reduced to 10% evaluation.  The applicant appealed this finding and was afforded a formal hearing on 10 March 1992.  That Board affirmed the 10 % evaluation and recommend that the applicant be separated with severance pay.

The applicant submitted an audio tape recording of his 10 March 1992 PED hearing.  A review of this tape shows that the proceedings centered on the applicant’s physical condition with limited questions related to his current employment with the VA.  The only reference to the applicant’s religious background was whether the applicant was a recognized minister at that time.

Title 10, United States Code, section 1202, provides for the placement of a member on the Temporary Disability Retired List when the disability may be permanent.  Placement on the Temporary Disability Retired List requires that the member meet the criteria of Title 10, United States Code, section 1201.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

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, it is concluded:

1.  The applicant has submitted no evidence that at the time of his removal from the TDRL that he was exhibiting symptoms that should have been rated greater than the 10% evaluation.

2.  A rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  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 rating.

3.  There is no indication that the PEB was biased or that the religious status of the applicant was a factor in their decision.

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__mkp__  ___aao__  ___eja___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020802	
SUFFIX		
RECON		
DATE BOARDED	19991201	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES        1.	108.02	
2.		
3.		
4.		
5.		
6.