MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            27 May 1999       
	DOCKET NUMBER:   AR1999024683

	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. Edward Williamson		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Kenneth L. Wright		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 retroactive to 1 June 1996.

APPLICANT STATES:  In effect, that he was released from active duty on 1 June 1996 after having been non-selected for promotion to major and electing to receive the special separation bonus (SSB).  He indicates that he was in poor medical condition at the time of his 1996 release from active duty but was not aware that he was eligible for medical retirement.  He states that in September 1997 he received a letter from the Army Reserve stating he no longer met medical retention standards because of his back condition and could elect to be transferred to the Retired Reserves.  He maintains that the same condition, which rendered him unfit for the Reserves, should also have rendered him unfit for continued active duty.  The applicant states that his separation physical examination was cursory at best, lasting just a few minutes and he believes that if he would have had a more thorough examination he would have been referred for disability processing.  He notes the examining physician found him qualified for “retirement” but did not indicate whether he meant “medical retirement or regular retirement” and did not state that he was qualified for retention.  The applicant contends that the physician may have assumed he was undergoing the physical examination for the purpose of retirement merely because of the applicant’s age and appearance and as such did not do a thorough examination. He notes that the physician’s comment tends to suggest that “the physician felt that the examinee was not qualified for retention or ETS, but was only qualified for retirement.”  The applicant concludes that the “information on the physical, when taken in conjunction with the extensive objective information in the medical records demonstrating disability, strongly supports medical retirement in this case.”  He also notes that the VA granted him a 50 percent disability rating, which he maintains “corroborates this request for retroactive medical retirement.”

In a statement submitted to the Board the applicant outlines the progression of his back condition, which he states began to deteriorate while he was assigned to Korea in 1993.

He also submits a statement from a psychologist who outlines the applicant’s military career, his medical status, and concurs that he should be medical retired retroactive to 1 June 1996.

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

He served on active duty as an enlisted soldier between 1979 and 1981 and on 27 July 1981 was commissioned as a Reserve second lieutenant in the infantry.  He served on active duty in his commissioned status until 1984.

In December 1988 the applicant returned to active duty as USAR first lieutenant in the Judge Advocate General Corps.
The applicant was promoted to captain in July 1989.  His performance reports through 1994 indicate he consistently passed an annual physical fitness test, in spite of the fact, that his service medical records note that he suffered from a variety of ailments and complaints.

In May 1994 the applicant was notified that he was not selected for promotion to major by “a recent Reserve Selection Board.”  He was notified in June 1995 that he had been passed over a second time for promotion to major and that as a result of his second nonselection he would be separated.

In August 1995 an orthopedic consultation noted that the applicant was complaining of persistent low back pain which he could not relate to a particular injury but which he noted “has been progressive over many years.”  The evaluating physician noted that x-rays showed “type I spondylolisthesis L5-S1 with mild degenerative changes noted” and concluded the applicant had “maxed out on nonoperative treatment at this time.”

The applicant underwent a physical examination in preparation for his separation on 13 March 1996.  He indicated in his report of medical history that he was in “fair” health and attached a 4 page self authored statement detailing his numerous medical complaints and summarizing his Army medical history.

The evaluating physician noted the applicant’s complaints and marked the block “is qualified for” and wrote “retirement” but also recommended the applicant “follow-up at TMC for chronic problem.”  He indicated the applicant had no limiting profile (1-1-1-1-1-1) and assigned the applicant the highest possible “physical category” code “A.”  The completed report of medical examination indicated in block 5 that the purpose of examination was for “ETS.”

A final performance evaluation report, completed in April 1996 for the period 
10 April 1995 through 9 April 1996, noted the applicant “meets body fat standard of AR 600-9,” and that he had a physical profile as of October 1995 but he was “able to perform assigned duties without limitations.”

On 1 June 1996 the applicant was voluntarily released from active duty under the Army’s early release program and received a lump sum SSB payment of $79,933.32.  He was transferred to the USAR Control Group (reinforcement).

In September 1997 the applicant was notified that a “review of [his] Army medical records” revealed that his did not meet the “standards for retention in the U.S. Army Reserve and/or entry on active duty by reason of Spondylolitheisis in L5 and S1 with degenerative changes IAW AR 40-501, chapter 3-39.a.(3).”  The applicant was given the option of electing to be discharged from the Army Reserve, transferred to the Retired Reserve, or undergo a fitness for duty evaluation.  The applicant elected to be transferred to the Retired Reserve but acknowledged that his transfer did not entitle him to “pay, allowance or other benefits unless otherwise entitled by law.”  He was transferred to the Retired Reserve effective 25 September 1997.

A copy of a VA document submitted by the applicant indicates he was granted a combined service connected disability rating of 50 percent by that agency.  However, his “spondylolistheis, grade one, L5-S1, with degenerative changes” which was the basis for his failing to meet USAR retention standards, was independently rated at only 10 percent.

Army Regulation 40-501, paragraph 3-39a(3) indicates that individuals with “spondylolysis or spondylolisthesis with more than mild symptoms resulting in repeated outpatient visits, or repeated hospitalization or limitations affecting performance of duty” do not meet the standards for retention.

Army Regulation 635-40, which outlines the policies and procedures disability processing 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 reasonable perform because of a physical disability incurred or aggravated in service.  When a soldier is being processed for separation or retirement 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 soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that (a) 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.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  (b) 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.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

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.  The evidence of record indicates that the applicant, in spite of his various medical conditions, was performing his duties in a satisfactory manner until his voluntary separation from active duty on 1 June 1996.  The Board notes that his rater specifically noted in his April 1996 evaluation report that the applicant was “able to perform assigned duties without limitations.”  His continued performance of duty until his separation from active duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or 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.  Although it is unclear why the physician who completed the applicant’s separation physical in March 1996 indicated the applicant was “qualified for retirement” clearly he did not intended to mean that the applicant should be “medically retired” from active duty.  Had that been his intention, the Board contends he would more likely have checked the block “is not qualified for” and referred the applicant to a Medical Evaluation Board.  The physician had access to the applicant’s service medical records, in addition to the 4 page self-authored statement submitted the applicant, and yet the physician gave him a physical profile of 1-1-1-1-1-1 and a physical category code of “A.”  If it were the physician’s intention to declare the applicant unfit the physical profile and physical category certainly reflected otherwise.

4.  The applicant was determined to not meet the retention standards for continued service, more than a year after his separation from active duty, based solely on his “spondylolitheisis” and not as a result of any other conditions the applicant may have been suffering from.  The Board notes that the VA, in its review of that condition, only rated the condition at 10 percent.

5.  Although a rating action by the VA does not necessarily demonstrate any error or injustice by the Army and does not compel the Army to modify its reason or authority for separation, a 10 percent rating would not have been sufficient for the individual to be medically retired.
6.  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.

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

___ew___  ___mw___  __klw___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999024683	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990527	
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.