MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           23 February 2000                   
	DOCKET NUMBER:   AR1999028037

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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:  Physical disability retirement.  He requests that his discharge for physical disability be changed to reflect physical disability retirement.

APPLICANT STATES:  That he was diagnosed with diabetes and discharged from the Army after serving for 17 years, 3 months, and 26 days.  It was determined that the diabetes made him unfit for military service.  He filed for compensation from the VA and received a 40 percent rating for his service connected disability.

He states that he was never informed of the law that authorized medical retirement for veterans that were discharged for medical reasons and received a service connected disability rating of 30 percent or more, until he was advised some 23 years after his discharge.  

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

The applicant entered the Army in 1958, served in locations throughout the world, to include Hawaii, Vietnam, and Germany.  He received numerous awards to include two awards of the Bronze Star Medal, the Combat Infantryman Badge, the Army Commendation Medal, and the Master Parachute Badge.  

On 2 April 1969 the applicant, then a Sergeant, was discharged in order to accept an appointment as a Reserve commissioned officer of the Army, continuing on active duty in his commissioned status.

In a 6 August 1975 letter, the chief of the disability section retirement branch at the Army Military Personnel Center, approved the findings of the physical evaluation board (PEB) which convened at Fort Gordon, Georgia on                   16 June 1975.  The board found the applicant to be physically fit for active military service or retirement/separation.  The applicant had a physical profile serial of 3 1 1 1 1 1 and could not be assigned to units requiring continued consumption of combat rations, or be assigned to isolated areas where definitive medical care was not available.  He was found physically qualified to perform the duties of his office, grade, rank, or rating, within the assignment limitations of his profile.

A 23 March 1976 medical board determined that the applicant’s condition as diabetes mellitus, adult onset, insulin dependent; status post submucosal rhinoplasty, and traumatic amputation of the tip of the right third finger.  That board indicated that the applicant had been admitted to the hospital at Fort Benning, Georgia, in March 1975, with complaints of weakness, fatigue, and weight loss, among other complaints, and diabetes mellitus was diagnosed at that time with mild diabetic ketoacidosis, and the applicant was started on insulin therapy.  A medical board was conducted but separation from the Army was not completed because the applicant’s diabetes gradually improved.  In            January 1976 he again developed symptoms of polydipsis, polyuria, polyphagia, and a small amount of weight loss.  It was felt that he had become insulin dependent, and he was put on insulin with the doses gradually increased.  The medical board stated that he did not meet the physical standards for retention and recommended that he be referred to a PEB.  The applicant indicated that he did not desire to continue on active duty.  The findings and recommendations of the board were approved, and the applicant so informed.

On 15 April 1976 a PEB determined that the applicant was unfit to perform the duties required of an infantry Captain, and recommended separation with a        20 percent disability rating.  On 22 April 1976 the applicant concurred and waived a formal hearing of his case.       

In a 9 June 1976 letter the chief of the disability section of the Military Personnel Center approved the findings of the PEB that he be discharged with severance pay in the grade of Captain. 

On 10 June 1976 the Military Personnel Center directed that the applicant be discharged with 20 percent disability severance pay.    

On 24 June 1976 the applicant was discharged because of his physical disability. He had 17 years, 3 months, and 25 days of service, and received severance pay in the amount of $34,884.00.

Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

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 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were 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, it is concluded:

1.  The applicant was discharged because of his physical disability and received a 20 percent disability rating by a PEB.  He concurred in that determination.  He has provided no evidence that this decision was incorrect and that he should have been retired for his disability.  His separation with severance pay was in compliance with law and regulation.          

2.  The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

3.  A rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  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 rating.

4.  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 his 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.

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

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

___rvo__  ___eb___  ___rjw___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028037	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000223	
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	108.00	
2.		
3.		
4.		
5.		
6.