MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            4 March 1999      
	DOCKET NUMBER:   AC97-08893
				    AR1999022814

	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. Curtis W. Barbee		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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:  At the time of his separation from active duty he “met [the] criteria” for permanent disability.  He notes he was injured while on active duty and was “forced out because no one wanted to start the board because of time and paper work.”  He states that his unit commander “was tired of [him] holding a slot in the company but working at a gymnasium” and that as he approached his reenlistment date he was told that a medical board would be initiated but was then told it was “too late” and that he “would have to deal with the VA.”

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

He entered active duty on 6 February 1987 and was trained in communication equipment maintenance.  On 1 November 1988 he was promoted to pay grade E-4 and on 21 September 1990 reenlisted for a period of 3 years.

The applicant’s service medical records indicate he was seen on numerous occasions for a variety of ailments, including migraine headaches which he related to a head injury (hit in the forehead by a the front-site of an M-16 and hit in the back of the head by a thrown duffel bag) sustained in 1988.

His service medical records contain three temporary profiles.  One in March 1988 following an appendectomy, one in January 1990 for muscle strain, and one in April 1993 for post traumatic vascular headaches.

On 23 August 1993 the applicant underwent a separation physical examination.  He noted a variety of ailments, including depression, obsessive compulsive disorder, migraine headaches and knee pains.  The evaluating physician noted the applicant’s conditions were stable, and found him medically qualified for separation.

The applicant was involuntarily released from active duty on 20 September 1993; at the completion of his re-enlistment contract because he was precluded from re-enlisting based on the retention control point for individuals serving in pay grade E-4.  The retention control point for individuals serving in pay grade E-4 was lowered to 8 years in October 1992 and soldiers whose reenlistment would cause them to exceed that point were ineligible to reenlist.  As a result of the applicant’s involuntary separation at the expiration of his 1990 reenlistment contract he received $9,963.48 in separation pay.

The National Defense Authorization Act of FY91 authorized separation pay for enlisted soldiers.  The message noted, in effect, that soldiers must have completed at least 6 years, but fewer than 20 years of active service, receive a service characterization of honorable or under honorable conditions, sign a written agreement to serve 3 years in the ready reserve, complete an initial term of enlistment, be on active duty on 5 November 1990, and be involuntarily separated or denied reenlistment after that date, in order to be eligible for separation pay.

Subsequent to his separation the applicant was granted a combined service connected disability rating of 50 percent retroactive to 21 September 1993 by the VA for migraine headaches and depressive disorder with obsessive-compulsive disorder.

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.

In the processing of this application an advisory opinion was provided by the Medical Advisor to the Board.  He noted there was no medical reason to change the applicant’s separation or retire him for disability.  The applicant was furnished a copy of the advisory opinion from the Medical Advisor to the Board for information and possible rebuttal.  He has not responded.

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.  Although the applicant's separation physical and service medical records noted several ailments his continued performance of duty until his separation from active duty in September 1993 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.  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.

5.  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

__cwb___  __eb____  __rjw___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-08893/AR1999022814	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990304	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
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.