MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           16 February 2000                  
	DOCKET NUMBER:   AR1999026042

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Meta Waller		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 discharge.  

APPLICANT STATES:  Her military service in her later years was characterized by multiple physical complaints which made her medically unfit for active duty.  Moreover, her mental status, then undiagnosed as post traumatic stress disorder (PTSD) was an underlying factor in her many physical problems. 

COUNSEL CONTENDS:  In effect, that the VA did establish service connection for her disabilities, the degree of disability having the potential for granting the applicant medical retirement benefits from the Army.  COPY OF COUNSEL’S STATEMENT IS ATTACHED.

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

The applicant enlisted in the Army Reserve on 6 April 1978 and on 4 August 1978 was assigned to Fort McClellan, Alabama for training.  She was discharged from the Army Reserve on 1 September 1978 as a result of her erroneous enlistment.  The applicant had three dependents at the time of her enlistment, and had been granted no waiver for dependency.  There was, however, no fraudulent intent on the applicant’s part concerning her enlistment.

The applicant reenlisted in the Army Reserve for 6 years in the delayed entry program (DEP) on 2 November 1978, and was discharged from that program upon her enlistment in the Regular Army for 4 years on 26 December 1978.  She remained on continuous active duty until her discharge in 1992, attaining the rank of Sergeant.

The applicant was awarded the Army Commendation Medal for meritorious service while assigned to a transportation battalion from 26 May 1981 to           20 August 1984.  She was promoted to pay grade E-5 effective                             1 September 1983.  She completed the primary leadership development course on 20 June 1986 and was awarded the Army Commendation Medal for meritorious service from 4 October 1984 to 13 November 1986 while assigned to a support center in Korea. 

An 18 March 1987 physical profile shows her medical condition as severe chondromalacia patella (kneecap arthritis) with a physical profile serial of            1 1 3 1 1 1, and that she could do no running, no road marches, no contact sports, and that she could use a cane when appropriate. 

On 8 October 1987 she was awarded the Army Achievement Medal while assigned to a transportation battalion at Fort Bragg, North Carolina.  

She reenlisted for 6 years on 16 December 1987.

On 22 July 1988 a MOS/Medical Retention Board conducted at Fort Bragg found that the applicant’s commanding officer’s evaluation report reflected that the applicant’s performance of duty exceeded that of her peers and that her medical condition in no way limited or lessened her ability to perform all duties required of her MOS.  He recommended that she be retained in her primary MOS (71N20, movement specialist).  The board concurred.  The board also indicated that the applicant had stated that she was fully capable of performing all duties required of her PMOS.  She noted that recent surgery had given her some relief from her arthritic condition and her physician gave her reason to believe that she could have her profile upgraded in the future and eventually taken off the profile.  She did not desire to be reclassified.  The board recommended that she be placed on probation for 180 days so she could rehabilitate herself.  The convening authority disapproved that recommendation and stated that the applicant would be retained in her PMOS and considered to be worldwide deployable within the limits of her profile. 

On 28 April 1989 she completed the joint personal property course conducted from 17 April to 28 April 1989, at Fort Eustis, Virginia.  She received a second oak leaf cluster to the Army Achievement Medal for the period 6 January to       30 January 1990 while assigned to a transportation company in Germany. 

On 16 January 1992 the applicant requested voluntary separation under the provisions of the voluntary incentive program to support the Army drawdown.  
She requested a special separation bonus (SSB) and agreed to serve in the Ready Reserve for a period of not less that 3 years.  She stated that she did not desire to be separated if her request for a SSB was not approved.  Her request was approved with a separation date of 1 June 1992.

The applicant was released from active duty at Wiesbaden Air Base in Germany on 1 June 1992 under the provisions of the FY 92 enlisted voluntary early transition program.  She had 13 years and 11 months of total active service.

The applicant was discharged from the Army Reserve on 14 May 1996.

On 25 June 1997 the VA awarded the applicant a 30 percent service connected disability rating for PTSD due to a sexual assault; and increased to 30 percent the disability rating for esophageal motility disorder.  The VA decision indicated that the applicant had claimed service connection for PTSD as a result of sexual assault which occurred on 11 March 1979 in Washington, D.C., while enroute to her assignment at Fort Eustis.  Her medical records showed that upon arrival at Fort Eustis she reported to the emergency room at McDonald Army Hospital and reported to the rape.  She was referred to Riverside emergency room for treatment and evaluation.   

On 25 June 1998 the VA increased the disability rating for PTSD to 50 percent, and granted her a 30 percent service connected rating for hiatal hernia;              30 percent for removal of uterus; 10 percent for glaucoma; 10 percent for removal of ovaries; 10 percent for injury of the bladder; 10 percent for limited motion in dorsal spine; 10 percent for right knee condition; and 10 percent for foot pain.  Her combined service connected disabilities was 90 percent, and she was entitled to receive compensation at the 100 percent rating because she was unemployable due to her service connected disabilities.

In late 1991 and early 1992 the PERSCOM announced implementing instructions for the FY 92 enlisted voluntary early transition program and provided for the voluntary  release from active duty for specific categories of soldiers with monetary incentives authorized.  One of these incentives was a SSB, a lump sum payment equal to 15 percent of the soldier’s basic monthly pay, multiplied by 12 and multiplied again by the soldier’s years of service.  Soldiers approved for SSB must enter into a written agreement to serve in the Ready Reserve for a period of not less than three years.  Soldiers who receive SSB and who subsequently qualify for retired/retainer pay shall have deducted from their retired pay a proportionate amount based on the service for which SSB was received.  Recoupment will be deducted from each payment of retired pay until the total amount deducted is equal the total amount of SSB received.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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.

Army Regulation 635-40, paragraph 3-2b states in pertinent part 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.  

That paragraph goes on to say that when a member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform her duties 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.
  
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 applicant voluntarily requested separation from active duty.  Her request was granted, and she was assigned to the Army Reserve in accordance with the provisions of the FY 92 early transition program.  Prior to her separation she agreed to this assignment.  She also stated that she did not want to be separated if her request for SSB were not approved, clearly indicating that she felt capable of continued active service.

2.  The applicant’s medical records are not available; however, the evidence of record shows that the applicant performed her duties well during her military career, received numerous awards, completed courses of instruction, and was promoted to pay grade E-5.  This, after the occurrence of the 1979 rape depicted in the VA rating decision, and despite her March 1987 profile because of her arthritic condition in her kneecap.  In fact, she herself indicated that she was physically fit to perform all the duties of her MOS.  

3.  The applicant's continued performance of duty raised a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with her separation.

4.  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.

5.  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 she can be medically retired or separated.

6.  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 her for VA benefits based on an evaluation by that agency.

7.  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 her 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.

8.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

9.  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

___clg___  ___mw__  __ aao___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026042	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000216	
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.  538	108.00	
2.		
3.		
4.		
5.		
6.