MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 August 1999    
	DOCKET NUMBER:   AR1999021269

	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:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Ms. Meta Waller		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 separation or retirement with an honorable characterization of service vice the general discharge he received for unsatisfactory performance.

APPLICANT STATES:  In effect, that he was disabled because of a service connected injury to his eye.  He notes the separation was unjust and that his performance was not unsatisfactory.  In support of his request he submits documents associated with his eye injury and evidence that the VA rated his eye condition at 30 percent.

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

The applicant entered active duty on 21 February 1985.  He successfully completed basic and advanced individual training prior to being assigned to Germany in November 1985.  

On 9 November 1986 the applicant “was assaulted in the latrine” and sustained a “traumatic hyphema in the left eye….”  He was ultimately issued a permanent 
“P-2” profile for his left eye.

The applicant was punished on three separate occasions under Article 15 of the UCMJ between December 1986 and May 1987.  In each instance the applicant was involved in some form of disorderly conduct.  Following the last action he was reduced to pay grade E-1.

In June 1987 the applicant’s unit commander initiated action to administratively separate the applicant from active duty under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The applicant consulted with counsel, acknowledged the proposed separation, and waived his attendant rights.

A mental health evaluation found him mentally responsible.  A physical examination, conducted in June 1987 noted the applicant’s eye condition but found him medically qualified for separation.

On 7 July 1987 the applicant was discharged under honorable conditions (general discharge).

Subsequent to his separation he was awarded a 30 percent disability rating by the VA for his eye condition.

The applicant’s record contains a letter from the Office of the Surgeon General, dated 11 August 1992 which states that the “individual’s behavior problems were not related to his eye injury which he sustained” in November 1986.

In May 1995 the Army Discharge Review Board unanimously denied the applicant’s petition to upgrade his discharge.

Army Regulation 635-200 states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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.  The applicant’s administrative separation was accomplished in accordance with laws and regulations applicable at the time.  The character of his discharge is commensurate with the applicant’s overall record of military service.

2.  The Board notes the applicant has provided no evidence that his eye injury was in any way related to the general discharge he ultimately received as a result of unsatisfactory performance.

3.  Although the applicant's separation physical noted his eye condition his continued performance of duty until his administrative separation from active duty in August 1987 raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness of injury concomitant with his separation.

4.  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.

5.  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.

6.  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.

7.  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

___rvo__  ___jma__  _mw_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021269	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990812	
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.