MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            29 April 1999     
	DOCKET NUMBER:   AR1999023717

	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:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Christopher J. Prosser		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.    

APPLICANT STATES:  That he served 20 years and received an honorable discharge, but he should be awarded a 100 percent physical disability rating because of his medical condition – coronary bypass surgery, diabetes, high blood pressure, and other illnesses.  He could no longer continue his military career.  He was no longer fit for military duty.

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

The applicant served on active duty in the Marine Corps, served in the Marine Corps Reserve, and in the Army National Guard.  On 25 October 1982 he enlisted in the Texas Army National Guard and remained with that component until his transfer to the Retired Reserve in 1995, attaining the rank of Sergeant.

A 24 October 1981 report of medical history indicates that the applicant stated that he had skin rash on his hands that break out at times.

A 1988 medical record indicates that the applicant was diagnosed as having diabetes mellitus.

The applicant’s NCO evaluation reports from 1989 until his transfer to the Retired Reserve show that he was fully capable for promotion and service in positions of greater responsibility.  His report ending in November 1991 shows that he had a physical profile, as do succeeding reports.  His last three reports show that he did not meet the Army weight control standards, and on 4 December 1993 he was “flagged” for that reason.

On 17 June 1991 the VA notified the applicant that he was awarded a 10 percent service connected disability rating for dermatophytosis.  He was awarded monthly compensation in the amount of $80.00

A 19 November 1994 medical record indicates that the applicant stated that he had open heart surgery (3 way bypass) at age 48 [in 1993].  That record also indicates that he stated that he contacted a skin disease while on active duty in Panama with the Marine Corps.

A 1994 physical profile record shows that the applicant had coronary bypass surgery, diabetes, and hypertension, and was given a physical profile serial of    4 1 1 1 1 1.

On 6 July 1995 he was notified that he had completed the required years of service and was eligible for retired pay at age 60.  On 24 October 1995 he was discharged from the Texas Army National Guard and transferred to the Retired Reserve.  His report of separation indicates that he requested this transfer.
Army Regulation 40-501 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.  That regulation also states that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Army Regulation 635-40, provides 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 member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.

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.

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.  Notwithstanding the applicant’s heart condition, there is no evidence of record that this condition, or his diabetes, was incurred or aggravated by his military service.  There is no evidence of record to show that the applicant suffered any illness at the time of his separation that was of such  severity that he was rendered unable to reasonably perform the duties of his office, grade, rank or rating.  

2.  The applicant was discharged from the Texas Army National Guard and transferred to the Retired Reserve at his own request, not by reason of physical disability.  Therefore, service was not interrupted by physical disability.  The applicant's 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 transfer to the Retired Reserve.  The Board notes that the VA awarded the applicant a 10 percent service connected disability and $80.00 compensation a month for this disability in 1991.  The applicant continued to serve in the Texas Army National Guard until 1995.

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

____amc_  ___esc__  __cjp___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023717	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990429	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.