MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            22 April 1999
	DOCKET NUMBER:   AR1999022821

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright 		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Thomas A. Pagan		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:  That his honorable discharge be changed to a medical retirement.

APPLICANT STATES:  In effect, that at the time of his separation he was unaware of his possible entitlements for a medical retirement or discharge.  He also states that after completing approximately 14 years of service he was separated due to his deteriorating physical condition and that he could no longer perform his duties pertaining to his rank and military occupational specialty (MOS) as a supply sergeant.  He goes on to state that this was the worst decision of his life and the Army required more of him physically; however, he was unable to perform any longer due to his condition.

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

The applicant was administered an entrance examination on 2 June 1969 and his Standard Form 88 (Report of Medical Examination) indicated that he was qualified for induction with an 111111 physical profile.

The applicant military records show he was inducted on 4 August 1969 as a unit supply specialist and was honorably discharged on 11 August 1969 for the purpose of immediate reenlistment.  He reenlisted on 12 August 1969 and continued to serve until he was honorably discharged on 14 February 1972.

After a break in service, he reenlisted on 13 June 1973 and continued to serve through a series of continuous reenlistments.  He was promoted to the rank of Staff Sergeant (SSG) on 17 May 1977.

On 27 April 1982 the Calendar Year 1982 Sergeant First Class Selection Board determined that the applicant should be barred from reenlistment under the Qualitative Management Program (QMP).  The bases for the determination were four Noncommissioned Officer Evaluation Reports which indicated that he displayed deficiencies and/or weaknesses in competence, judgement, and leadership.  Also considered were three nonjuducial punishments of five
specifications of being absent from his appointed place of duty.

On 14 May 1984 the applicant declined to appeal his bar to reenlist and requested immediate discharge.  

The applicant waived his separation medical examination on 16 October 1984 and received a physical profile of 111111 from a physician at the medical treatment facility.  The physician also determined that the applicant’s medical records indicated no medical problems that were currently under treatment or previously evaluated.

The applicant was honorably discharged on 24 May 1984 under the provisions of AR 635-200, paragraph 16-5(a) due to a DA imposed bar to reenlistment.  He had completed 13 years, 5 months, and 23 days of creditable service.

The applicant filed a claim with the Department of Veterans Affairs (DVA) for a service-connected disability for degenerative changes in his lumbar spine and left foot, headaches and pseudofollicutis barbae.  He was granted a 10% percent disability on 5 June 1985 for degenerative changes in his lumbar spine and left foot and was granted 0 percent for his headaches and pseudofollicutitis barbae.

On 26 June 1987, he reapplied to the DVA for an increase in compensation and was awarded a combined disability rating of 30 percent for arthritis of his left knee, lumbar spine and vascular headaches.  He was denied compensation for his pseudofollicutis barbae and dysthymic disorder (depression).

On 31 March 1988 he reapplied once again to DVA for an increase in compensation for a service connected disability for individual unemployability.  His compensation was reduced from 30 percent to 20 percent on 19 September 1988.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the Department of the Army Review Boards Agency (DARBA) medical advisor.  The applicant submitted his rebuttal (COPY ATTACHED), dated 28 October 1998. The medical advisor indicated that the applicant was diagnosed through the VA in 1988 with dysthymic disorder (depression).  He also indicated that the applicant contended that his current condition was manifested while on active duty.  He also indicated that the applicant’s medical records did not elicit any medical or psychiatric diagnosis that would preclude his ability to perform assigned duties of rank and position.  He further indicated that there is no evidence of disqualifying medical conditions under the provisions of Army Regulation 40-501, chapter 3.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligation.  Paragraph 16-5 applies to personnel who denied reenlistment and provided that soldiers who received a 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.  Incident to the request the member must state that he understands that recoupment of unearned portions of any enlistment or reenlistment bonus is required and that later reenlistment is not permitted.

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.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically fit to perform the duties of his officer, rank, grade or rating because of disability incurred while entitled to basic pay.

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.

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.

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 Board noted the applicant’s contention that he was unaware of his possible entitlements for a medical retirement or discharge and that he was separated due to his deteriorating physical condition and unable to perform his duties pertaining to his rank and grade.  However, evidence of record clearly shows that he was separated with a physical profile of 111111 under the provision of chapter 16-5 due to a DA imposed bar to reenlistment, not as the result of a medical condition.

2.  The applicant’s service records do not indicate any medical condition incurred while entitled to receive basis pay which was so severe as to render the applicant medically fit for retention on active duty.

3.  The rating action by the VA does not necessarily demonstrate any error or injustice on the part of the Army.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  Any rating action by the VA does not necessarily constitute an error or injustice on the part of the Department.
4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5.  The type of discharge directed and the reasons therefor were appropriate considering all of the facts of the case.

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

INW________  EB________  TAP________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022821	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990422	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19840524	
DISCHARGE AUTHORITY	AR 635-200 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.108		
2.136		
3.		
4.		
5.		
6.