MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            11 February 2000                  
	DOCKET NUMBER:    AR1999027521

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Thomas B. Redfern, III		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 from active duty.

APPLICANT STATES:  That he should have received a disability retirement for injuries he received in Bosnia, for which he was granted a 40 percent disability rating by the Veterans Administration (VA).  In support of his request he submits his VA rating decision, a copy of his active duty orders, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a chronological statement of his retirement points.

EVIDENCE OF RECORD:  The applicant's military records were not available, information contained herein was reconstructed based solely on documents provided by the applicant.  

On 21 December 1995, he was ordered to active duty for deployment to Bosnia.

On 27 July 1996, he was released from active duty under the provisions of Army Regulation 600-8-24, paragraph 2-7, for completion of required active service.  His Report of Separation indicates he had 7 months and 7 days of active Federal service.  

There were no service medical records in the applicant’s available records, nor were any furnished by the applicant.  

Subsequent to his separation, in March 1997, the applicant was granted a service connected disability rating of 40 percent by the VA for discogenic disease of the lumbar spine with left leg radiculopathy. 

It appears, based on the applicant’s retirement points worksheet that he was retired from the U.S. Army Reserve in 1998.  While the reason for his transfer is unknown, it was possibly as a result of the National Defense Authorization Act for Fiscal Year 1995 which amended Title 10, section 1331, to allow Reserve component soldiers who are involuntarily separated, between 5 October 1994 and 30 September 1999, because of medical unfitness to elect transfer to the Retired Reserve with entitlement to retirement pay at age 60, based on a minimum of 15 years of qualifying service toward Reserve component retirement.

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 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 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his 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.

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 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.  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.  

2.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

3.  The evidence of record indicates he did not have any medically unfitting disability which required physical disability processing at the time of his release from active duty in 1996.  Therefore, there is no basis for physical disability retirement or separation.

4.  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.

5.  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__  ___gdp__  ___tbr___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999027521	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000211	
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. 177	110.02	
2.		
3.		
4.		
5.		
6.