MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            24 March 1999                  
	DOCKET NUMBER:   AR1999022396

	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:

	Mr. James E. Vick		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Allen L. Raub		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 retirement or separation.  

APPLICANT STATES:  That he was involved in a motor vehicle accident in November of 1988 causing damage to his left knee and left foot.  He received two operations on his foot within one year, and consequently was on profile for over one year.  He could no longer perform his military duties as in the past and applied for a medical discharge.  He was verbally harassed by an NCO, psychologically affecting him, and got into an altercation with that same NCO, for which he received nonjudicial punishment under Article 15, UCMJ.   The final act of discrimination was more than he could bear and his psychological state of mind disintegrated.  He received many psychological tests at the Wurzburg General Hospital in Germany, and all this because he was denied a fair chance for a medical discharge.  Because of his profile, he could not perform physical training, he started to gain weight, and received a local bar to reenlistment.  He then received an administrative discharge.  Subsequent to his discharge, he is receiving a 30 percent service connected disability rating from the VA, and is still suffering from pain in his left foot and knee.  He has had three operations since his discharge.  

While he was in the Army, he could not be promoted because he had never been to the primary leadership development course (PLDC), and he could not go to PLDC because of his medical problems.  He was a good soldier, who had an accident, could not perform, and instead of receiving the medical discharge he deserved, he was wrongfully processed for discharge.

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

The applicant enlisted in the Army on 5 September 1984 and on 21 May 1987 reenlisted for three years.  In December 1988 he was assigned to a howitzer battery in Germany.

On 21 November 1989 the applicant received a temporary profile for his foot, which stated that he could do no unit physical training.

On 13 June 1990 the applicant was counseled because of his substandard military appearance. 

A 21 June 1990 memorandum from an officer on the Army Health Clinic in Bad Kissingen to the applicant’s commanding officer indicated that the applicant had suffered a fracture of his left metatarsal, had been on sick call on numerous occasions because of persistent pain and inability to perform physical training.  

There was a slow healing of the fracture with uncertain time frame for expected resolution of symptoms.  That officer recommended consideration be given to the applicant’s separation from the Army.

On 5 November 1990 the applicant received a temporary physical profile for an old left foot fracture/chronic pain, and could no running, jumping or marching or standing longer than 20 minutes.  That profile was continued on                         10 December 1990 with an 11 February 1991 expiration date.

On 17 December 1990 the applicant was counseled for failure to follow instructions and for not being at his place of duty.  The NCO who counseled him stated that he would recommend that he be barred from reenlisting.

On 25 January 1991 the applicant received nonjudicial punishment under      Article 15, UCMJ, for disrespect to an NCO.  He was reduced to pay grade E-3.

On 11 February 1991 the applicant was counseled, in effect, for not reporting for duty after he had completed a hospital appointment.  

On 18 April 1991 the applicant was barred from reenlistment.  The applicant’s commanding officer stated, in recommending that bar, that the applicant had a history of disciplinary problems resulting from a severe personality disorder, and that a psychiatrist determined that this disorder prevented useful service.  The applicant did not appeal that bar, and on the same day requested that he be discharged under the provisions of Army Regulation 635-200, paragraph 16-5, in that he would not be able to overcome the locally imposed bar to reenlistment.   
That request was approved by the separation authority on 14 May 1991.

The applicant was discharged at Fort Jackson, South Carolina on 19 June 1991 in pay grade E-3, under the provisions of Army Regulation 635-200, paragraph 16-5b, because of a locally imposed bar to reenlistment.  He had 6 years,            9 months, and 15 days of service.

A November 1995 VA rating decision awarded the applicant a 20 percent disability rating for left knee synovitis with joint laxity, effective                            29 September 1992, a 10 percent increase from the previous rating; and continued the 10 percent rating for residual, fracture, left fifth metatarsal with tender surgical scar.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligations.  Paragraph 16-5 applies to personnel denied reenlistment and provides that soldiers who receive DA imposed or locally imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar may apply for immediate discharge.

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 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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant requested discharge from the Army and that request was approved.  His 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.

2.  In the absence of medical evidence to the contrary, it is presumed that the available service records are correct as presently constituted.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment he received in service, nor has the applicant presented any evidence to show that he had a medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

3.  The fact that the VA, in its discretion, has 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.  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

___jev__  __rwa___  ___alr__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	ACR1999022396	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990324	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.