MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 June 1999      
	DOCKET NUMBER:   AR1999024263

	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:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Gary F. Geraets		Member	
	Mr. Lester Echols		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:  Via information contained on a DD Form 293, that he was never given an opportunity to be referred for disability processing in spite of his requests.  He notes that when he asked for a “disability board” he was denied because “there was not enough time for a board.”  He believes that if it had not been for his medical problems he would have been able to serve until retirement. Subsequent to his separation he was granted a 60 percent disability rating by the VA.  He submits no documentation in support of his request.

COUNSEL CONTENDS:  Counsel submits nothing beyond that submitted by the applicant but does ask that the case be held in abeyance until his service medical records can be retrieved.

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

He entered active duty on 8 January 1986 and served continuously until his separation on 2 January 1994, his scheduled separation date based on a 1990 reenlistment.

During his military service he served in a variety of locations in the supply field, including two tours of duty in Korea and several months in Southwest Asia during the Persian Gulf War.  He was promoted to pay grade E-5 in December 1991.

The applicant’s file contains a November 1992 line of duty investigation indicating the applicant sustained a “minor neck trauma” on 8 November 1992 while playing football.  He was in Korea at the time of the incident and was hit in the throat by someone’s elbow.  A subsequent performance evaluation report, however, notes that he successfully passed a physical fitness test in November 1992.  In fact, his performance evaluation reports note that he also passed physical evaluation tests in November 1991 and May 1992.  His DA Form 2A (Automated Personnel Qualification Records) indicates that as of 20 December 1993 he had a physical profile of 1-1-1-1-1-1 and a physical category code of “A.”

On 2 January 1994, the applicant’s scheduled separation date, he was honorably discharged from active duty and received $6,654.75 in separation pay.  His separation document contains a Separation Program Designator (SPD) code of “JBK” indicating he was not eligible for reenlistment at the time of his separation. There is, however, no documents contained in his file that explain the basis for his reenlistment ineligibility although it could be related to either a local bar to reenlistment or the fact that his specialty may have been overstrengthed.  Department of the Army, under the “excellence in retention” program was denying reenlistment to individuals in certain skills which were overstrenghed to the needs of the Army.  The program was one of many utilized by the Army during the drawdown period.

Subsequent to the applicant’s separation, he was apparently awarded a 60 percent disability rating by the VA.

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.

Army Regulation 635-40 states that when a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duties commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier 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 because of 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 reason other than physical disability and which rendered the soldier unfit for further duty. 

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.  There is no evidence, nor has the applicant submit any, which indicates he had any medically unfitting disability, which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

2.  His continued performance of duty until his separation from active duty in January 1994 raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness of injury concomitant with his separation.

3.  Although the applicant submitted no evidence to support his receipt of disability pay from the VA the Board finds no reason to doubt his statement.  However even if the documents had been submitted confirming the entitlement the Board notes that 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.  It is incumbent upon the applicant to submit relevant documentation to support his case.  As such there is no basis to hold his case in abeyance as requested by counsel. 

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

___mkp__  ___gfg__  ___le___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999024263	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990623	
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.