MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            4 March 1999      
	DOCKET NUMBER:   AR1999022957

	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, in effect, that the VA subsequently granted him a disability rating of 70 percent based on the “severity of [his] line of duty disabilities.”  In support of his request he submits copies of his VA disability rating decision.

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

He entered active duty on 27 January 1984 and last re-enlisted for a period of 
4 years on 29 January 1992.  On 1 September 1993 he was promoted to pay grade E-6.

The applicant’s performance evaluation reports indicate he consistently passed the Army’s annual physical fitness test and there is no mention of any disabilities, which impacted, on his ability to perform his duties as a field artilleryman.

Although attempts to secure copies of the applicant’s service medical records were not successful his Personnel Qualification Record indicates he had a physical profile of 1-1-1-1-1-1 as of 29 January 1995.

On 28 January 1996, at the conclusion of his 1992 re-enlistment contract, he was voluntarily separated from active duty with a reenlistment eligibility code of RE-1, indicating he was fully qualified to reenlist at the time of his separation.

Subsequent to his separation the applicant was granted a combined service connected disability rating of 70 percent by the VA for back strain (40%), inflammation of ilio-inguinal nerve (10%), eczema (10%), tinnitus (10%), and his knees (each rated at 10%).

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.  Although the applicant may have incurred several ailments while on active duty, his continued performance of duty until his separation from active duty in January 1996 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	AR1999022957	
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.