MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            26 August 1999    
	DOCKET NUMBER:   AR1999021208

	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:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Samuel Calderon		Member	
	Ms. Barbara J. Ellis		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 retirement.

APPLICANT STATES:  In effect, that he is currently receiving disability benefits from the VA as a result of injuries incurred while he was on active duty.  He contends those same injuries resulted in his discharge from the Alabama Army National Guard.  He states that he wishes to have his 1997 release from active duty converted to a medical discharge so that he can “keep [his] benefits.”  In support of his request he submits a copy of his separation orders from the National Guard and copies of VA documents indicating he has been awarded disability compensation.

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

He entered active duty on 29 March 1994 and served successfully until 
28 September 1997 when he was honorably discharged and transferred to the Alabama Army National Guard.  His 1997 DD Form 214 indicates that he successfully completed several military training courses during his more than three years of active duty, was awarded several decorations, served three years overseas and was promoted to pay grade E-5.  His reenlistment eligibility code was “RE-1” indicating he was fully qualified for reenlistment.

Subsequent to his separation from active duty he served in the Alabama Army National Guard and was discharged on 31 July 1998, nearly a year after his release from active duty.

A June 1998 letter from the Department of Veterans Affairs indicates the applicant was awarded disability compensation for tinnitus, pes planus, left scrotal varicocele, and bilateral retropatellar pain.  Each of those conditions was independently rated at 10 percent by the VA although there is no indication what the applicant’s “combined” service connected VA disability rating was.

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 reasonably perform because of a physical disability incurred or aggravated in service.  When a slider is being processed for separation or retirement for reason 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.

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.  Although the applicant may have had several medical ailments attributed to his military service his continued performance of duty until his separation from active duty in September 1997 raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness of injury concomitant with his separation.

2.  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.

3.  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.

4.  The fact that he may have been released from the Army National Guard nearly a year after his discharge from active duty based on his medical condition in no way impacts on his 1997 release from active duty nor is an indication that he should have been medically retired or separated from active duty.

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

__slp___  ___sc_____  __bje___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021208	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990826	
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.		
3.		
4.		
5.		
6.