MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:  8 September 1999                              
	DOCKET NUMBER:   AR1999021859

	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 H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Karen L. Wolff 		Member	
	Mr. Orville W. Troesch, 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, physical disability discharge.  

APPLICANT STATES:  That she was diagnosed during training with trauma of stressed periosteal reaction to both legs and she should have received a medical discharge.  She was not notified of her pending disability, but was assigned to a Reserve unit in Richmond, Virginia.  After failing several physical training tests and being under a doctor’s care, she was discharged from that unit.  The trauma still exists.

The injury affected her ability to do her job with her Reserve unit.  She remained in that unit for about three years prior to being released.  She has a difficult time remaining employed, and she suffers from pain.  The VA has been helpful.  She suffers from depression, and wasn’t employed  from 1990 through 1994.  Her injury to her legs keeps her from working.  She questions the decision to send her to Aberdeen Proving Ground and then to her Reserve unit, considering that the unit was concerned about her test results. 

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

The applicant enlisted in the Virginia Army National Guard on 13 October 1988, completed a track vehicle repairer course at Aberdeen Proving Ground, Mayland on 16 May 1989 and was released from active duty for training the following day and returned to her National Guard unit, the 3647th Maintenance Company in Richmond.

A medical record shows that she received a bone scan on 22 May 1989, because of pain in her lower legs that began in mid January 1989.  The scan revealed marked bilateral tibial stress induced periosteal reaction, negative for stress fractures.  

In a 30 June 1989 memorandum an NCO of the Virginia Army National Guard indicated that the applicant had been injured at Fort Dix, New Jersey during basic training, and had some type of stress fracture.  She proceeded to Aberdeen Proving Ground for advanced training, still experiencing some pain.  She received a bone scan, but the results had not been located.  Because a line of duty determination was pending from Walter Reed, the applicant was not to attend annual training for risk of further injury.

The applicant was charged with 10 unexcused absences from training assemblies beginning in December 1989 and ending in September 1990.  

Consequently, she was discharged from the Virginia Army National Guard under honorable conditions because of her unsatisfactory participation on                   22 October 1990; and transferred to the Army Reserve Control Group (Annual Training) at St. Louis.  She was discharged from the Army Reserve on              15 October 1996. 

Army Regulation 40-3, chapter 7, provides for medical evaluation boards (MEBDs), and are convened to document a service member’s medical status and duty limitations insofar as duty is affected by the member’s medical status.  Situations that require consideration by a MEBD include those involving Reserve component personnel on active duty for training (ADT) or inactive duty for training (IDT), whose fitness for further military service upon completion of hospitalization is questionable, and those who require hospitalization beyond the termination of their tour of duty.  Consideration by a MEBD also includes those involving a Reserve component member who requires evaluation because of a condition that may render her unfit for further duty. 

Army Regulation 635-40, paragraph 3-2b, provides that when a member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform her 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.

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 apparently had some injury to her leg while undergoing basic training at Fort Dix, New Jersey.  Nevertheless, she finished her training there, continued on to Aberdeen Proving Ground, completed her advanced training, and was released from active duty and returned to her unit in March 1989, where she served until her discharge.  Her continued performance of duty at the time of her release from active duty raised a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with her separation.

2.  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 her for VA benefits based on an evaluation by that agency.

3.  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.

4.  There is no evidence, nor has the applicant provided any, to indicate that she had a medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

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

___fkm__  ___klw__  ___owt___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021859	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990908	
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.