MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 March 2000                   
	DOCKET NUMBER:   AR1999026014

	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.

	Mrs. Nancy Amos		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:  In effect, that his retirement for length of service be changed to a medical retirement,

APPLICANT STATES:  That due to the unusual circumstances of his retirement he was not afforded the normal processing opportunities.

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

He enlisted in the Regular Army on 31 July 1972.  

The applicant’s non-commissioned officer evaluation report (NCO-ER) for the period ending July 1989 showed he had four “excellence” and one “success” ratings in the five rated categories of NCO responsibilities and that he passed his Army Physical Fitness Test (APFT).  His NCO-ER for the period ending December 1989 showed the same ratings and APFT information.  His next available active duty NCO-ER is for the period ending February 1992.  It showed he had five “success” ratings in the five rated categories of NCO responsibilities. It shows he had a temporary profile but that his profile did not hinder his duty performance.  

On 19 December 1989, the applicant was awarded a Certificate of Appreciation for his distinguished honorable service for his outstanding contributions to the 10th Mountain Division’s mission accomplishments.  On 24 January 1991, he was awarded an Army Achievement Medal for exceptionally meritorious achievement. The citation noted that his hard work and dedicated service contributed to his battalion’s redeployment from overseas.  On 29 October 1991, he was awarded a Certificate of Achievement for exceptionally meritorious achievement.  The certificate noted that his hard work and superior proficiency enabled his dining facility to be distinguished as the Group best dining facility for the quarter.  He received many similar letters and awards throughout his career.

The applicant applied for retirement effective 31 August 1992.  The application was returned for additional documentation and for an unknown reason no further action taken.  He then applied for separation under the Special Separation Benefits Program.  This was approved and he was separated on 31 July 1992 after completing 19 years, 11 months and 18 days of creditable active service.

Around 1994, the applicant applied to this Board requesting correction of his records to show he had 20 years of service and was eligible for an active duty retirement.  On 23 August 1995, the Board granted his request and his records were corrected to show he retired for length of service on 1 September 1992.

Effective 30 March 1999, the VA awarded the applicant a combined service-connection disability rating of 50 percent – 20 percent for right shoulder strain;  20 percent for left shoulder strain; 10 percent for chronic left ankle strain; and   20 percent for tinnitus.

In the processing of this case, an advisory opinion was obtained from the medical advisor to the Army Review Boards Agency, who opined that there was no medical reason to change the applicant’s discharge.

The applicant rebutted this opinion.  He stated that he had made many trips to hospitals and dispensaries with shoulder(s) problems.  That, plus the evidence he provides concerning the VA’s determination, shows that he should have been medically processed for separation.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  In pertinent part, it 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 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 a soldier is fit.  Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

Title 38, U. S. 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 and advisory opinion, it is concluded:

1.  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.

2.  The Board concludes that the preponderance of the evidence shows the applicant was fit for duty at the time of his separation.  He received numerous certificates of commendation and appreciation and awards that attested to his outstanding performance of duties.  The available NCO-ERs showed that he performed in a mostly “excellent” manner.  His last NCO-ER did show that he had a profile but that it did not hinder the performance of his duties.  The Board concludes that he has not overcome the presumption of fitness rule.  

3.  The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its separation accordingly. 

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

__jlp___  __owt___  __cjp___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026014	
SUFFIX		
RECON		
DATE BOARDED	20000316	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.