MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            18 March 1999                  
	DOCKET NUMBER:   AC96-10894
				   AR1999023550

	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. James M. Alward		Chairperson	
	Ms. Karen Y. Fletcher		Member	
	Mr. Ernest W. Lutz, 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, disability retirement.

APPLICANT STATES:  He was in the “medical retention process for 6 months” prior to receiving notification of his involuntary separation under the Army’s Qualitative Management Program (QMP) and maintains he was denied a medical retirement due to the QMP.  The applicant states that he is currently rated at 60 percent disabled by the VA.

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

He served an initial period of active duty between February 1976 and February 1979 and reenlisted in March 1979.  Upon his return to active duty in 1979 he initially performed duties as an infantryman and in 1983 became an Army recruiter.

In 1986 he received a general officer letter of reprimand for a “recruiting impropriety” while he was serving as a recruiting station commander.  Following the letter of reprimand he returned to his original duties as an infantryman.

The applicant’s military personnel file contains a 1990 permanent physical profile for bilateral high frequency sensorineural hearing loss and an undated profile for arthritis/scoliosis.  The profile for arthritis/scoliosis only limits the applicant’s ability to run at his own pace and distance.

His performance evaluation reports through 1991 consistently indicate the applicant successfully passed his annual physical evaluation test.  Although his February 1992 evaluation report notes he did not take a physical evaluation test in 1992 because of a profile his rater indicated the profile did not interfere with the applicant’s duty performance.

In February 1992 the applicant was notified of a Department of the Army imposed bar to reenlistment under the Qualitative Management Program.  His 1986 letter of reprimand was cited as one of the primary reasons for the DA bar.  The applicant’s appeal of the bar to reenlistment was denied in June 1992 and the applicant was instructed that he would have to separate from the Army not later than 30 September 1992.

The applicant’s DA Form 2-1 (personnel qualification record) indicates he was assigned to the medical holding detachment at Fort Campbell, Kentucky on 
2 October 1992.  Although attempts to secure copies of the applicant’s service medical records were not successful there is no indication he was medically disqualified from remaining on active duty.  On 30 September 1993 he was involuntarily discharged based on the 1992 QMP action and received more than $19,000.00 in separation pay.

According to the applicant he is currently rated as 60 percent disabled by the VA.

Army Regulation 601-280, chapter 10, sets forth policy and prescribes procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  It is designed to (1) enhance the quality of the career enlisted force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service.  The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram.  Under the qualitative screening subprogram, records for grades 
E-5 through E-9 are regularly screened by the DA promotion selection boards.  The appropriate selection boards evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted.  Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.

Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the solider is fit.  The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability or an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty.

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.  Contrary to the applicant’s contention, evidence in his military personnel file indicates that at the time he was notified of the QMP action in February 1992 his performance evaluation report was indicating that his physical profile did not interfere with his performance of duty.  There is no evidence, as the applicant indicated in his application, that he was “in the medical retention process for 6 months prior to” receiving the QMP notification.  Rather, his records indicate he was assigned to a medical holding detachment 2 days after his originally scheduled involuntary separation date.

2.  Although the applicant’s service medical records were not available to the Board the fact that he remained in a medical hold status for nearly a year after his scheduled September 1992 separation date, tends to indicate he was considered for disability processing but ultimately found fit and separated under the QMP action.  There is no evidence, nor does the applicant provide any, that the pending QMP action prevented him from being found medically unfit for continued service.

3.  Although the applicant's military personnel file indicates he had a permanent physical profile at the time of his separation there is no evidence of any unfitting, acute, grave illness of injury concomitant with his separation and as such there is no basis for physical disability retirement or separation.

4.  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.

5.  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.
6.  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

___jma_____  __kyf___  __ewl_  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC96-10894/AR1999023550	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990318	
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.