MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           17 June 1999      
	DOCKET NUMBER:   AR1999021017

	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. Jennifer L. Prater		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Ernest W. Lutz, Jr.		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, the applicant requests physical disability retirement or separation.  In a separate application received via a congressional inquiry, he requests award of the Purple Heart.  

APPLICANT STATES:  In effect, he states a claim for heroin addiction, inferring that his addiction went unnoticed because of no urine testing in effect.  He states that his life, reputation, and lives of many others were affected.  He had no prior history [of addiction].  He states that this was an ongoing problem until 1983 and he was cleared in 1984, but too much damage was done.

The applicant states that he did not receive the Purple Heart for numerous incidents.  He was discharged, and immediately afterward was determined to have service connected disabilities.  He was treated in Vietnam, but not sent home due to his being in a critical job position.  He has a terminal condition and would like his family to have the Purple Heart.

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

The applicant enlisted in the Army for three years on 2 December 1966, completed training as a wireman, and in April 1967 was assigned to an artillery unit at Fort Sill, Oklahoma.  In December of 1967 he was assigned to an artillery battery in Germany.  In October 1968 he was enroute to Vietnam, and in December of that year was a switchboard operator with Headquarters and Headquarters Company, 11th Infantry Brigade.  He was promoted to pay       grade E-4 on 16 December 1968.  He returned to the United States and was released from active duty on 22 November 1969 at Fort Lewis, Washington.  A DA Form 1811 (Physical and Mental Status on Release From Active Service) indicates that he was physically qualified for separation with a physical profile of 1 1 1 1 1 1.  The applicant’s DD Form 214 shows that he was awarded the Army Commendation Medal, the National Defense Service Medal, the Vietnam Service Meal, and the Vietnam Campaign Medal.  It does not show award of the Purple Heart.  His DA Form 20 (Enlisted Qualification Record) does not show award of the Purple Heart, and the block titled, “WOUNDS”, on that form contains no entry.   

The applicant was discharged from the Army Reserve on 1 December 1972.  

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.

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 600-8-22 provides that the Purple Heart is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

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’s 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 his separation, 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.  

2.  Furthermore, 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 was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary.  

3.  Because the VA, in its discretion, may have 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.

4.  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.

5.  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.

6.  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.

7.  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.  The applicant’s claim for such because of his addiction is unsupportable.

8.  There is no evidence or information to show that the applicant was wounded in action during his tour in Vietnam.  Nor has the applicant furnished any evidence.  He is not entitled to award of the Purple Heart.

9.  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

__jlp___  ___tap__  __ewl___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021017	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990617	
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. 108.00		
2.  107.00		
3.		
4.		
5.		
6.