MEMORANDUM OF CONSIDERATION

IN THE CASE OF:       

BOARD DATE:           16 March 2000 
DOCKET NUMBER:   AR1999024341

	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.

	Ms. P. A. Castle		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch, Jr.		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:  Reconsideration of his previous request to correct his records to reflect that he was separated from the service by reason of physical disability.

APPLICANT STATES:  In effect, that he still suffers from seizures, memory loss, interrupted sleep, feeling tense, and depression as a result of the two accidents he had while serving on active duty.  He refers to these symptoms as suffering with PTSD and states that he should have been medically retired.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum for record (MOC) prepared to reflect the Board's original consideration of his case on 8 January 1986. (COPY ATTACHED).

The applicant submits as new evidence a favorable VA decision for increased compensation, which was made on 30 August 1999.  This is new evidence that, technically, requires Board consideration.

The decision awards the applicant with a combined rating of 80% for a seizure disorder and mood disorder, service connected for post traumatic stress.

In July 1985 the applicant applied to the Army Board for the Correction of Military Records and the case was referred to Office of The Surgeon General (OTSG) for an opinion (COPY ATTACHED) regarding the applicant’s contention that he should have been retired for physical disability.  It was determined after a thorough review that the applicant was medically fit for retention at the time of his separation on    25 April 1984.

Army Regulation 635-40, paragraph 3-2b(1), 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.

Army Regulation 635-40, paragraph 3-2b(2), provides that 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.

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 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 associated with his separation.  The applicant’s military service was not interrupted by physical disability.  

2.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

3. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

4.  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

__JSP __  __OWT__  __DJP___  DENY APPLICATION

	Karl F. Schneider
			       Director, Army Review Boards Agency

INDEX

CASE ID	AD84-06625
AR1999024341	
SUFFIX		
RECON	 	
DATE BOARDED	20000316                              	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.