MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           5 April 2000                   
	DOCKET NUMBER:   AR1999028209

	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	
	Mr. Stanley Kelley		Member	
	Mr. Lester Echols		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.  

APPLICANT STATES:  That he should have been afforded a physical evaluation board (PEB) to assess his disabilities.  He was no longer able to work in his MOS and would not have been able to continue in the Army had he not been separated.  He spent the last year of service “laid up”, and the first year after his discharge undergoing numerous surgeries and treatments.  He should have been medically separated because of his health. 

The applicant states that he had been previously separated from the Army in 1989 due to a number of injuries to his ankle, and received a waiver to reenter the Army in 1991.  After a few years in the 3d Special Forces he was no better off than in 1989.  He was hardly able to walk, let alone run.  He transferred to an instructor position at the Special Warfare Center and School.  In 1994 he injured his back on a parachute jump, and was constantly in physical therapy thereafter. He was unable to do physical training, parachute jumps, or other MOS related activities.  His unit personnel tried to cover for him.  He was constantly medicated for his pain.  His ankles had developed severe Reflect Sympathetic Dystrophy and his back was fractured around the pelvis with degenerative changes rapidly occurring around his disks and vertebrae.  His commander told him to stay at home in the mornings, feeling it was unnecessary for him to come in.  His back fracture was unstable, and continued so, but he would not find out until later at the VA hospital.  For reasons unrelated to his injuries he requested separation.  He was informed that he could not again be separated for disability.  He requested an exit physical examination, and it was granted, but not completed.

He had returned to the Army with pre-existing medical conditions that had worsened, and had new injuries that were debilitating.  He spent most of the last year in the Army at a hospital, clinic, or with a medic.  When he separated he was immediately treated by the VA.  He was constantly in the VA emergency room or at the clinic.  He was in acute pain and had surgery 5 times on his hands and ankles.  There is not doubt that he would not have been able to continue had he remained in the Army.  When he reentered on active duty his disability was rated as 10 percent.  When he left in 1996, his disabilities were 80 percent.  An injustice has been done him in that he should have received a PEB.  

The applicant is supported in his request by the command sergeant major at the Joint Special Operations Medical Training Center, a former fellow soldier, another former soldier (his former team sergeant), and his wife (COPIES ATTACHED).

COUNSEL CONTENDS:  Counsel did not respond to notification that the applicant’s records were available for review.

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

The applicant had served in the Army from 8 November 1983 until                     17 November 1989 as a special operations medical sergeant.  He was discharged because of physical disability and received severance pay of $15,519.60.  His rank was Staff Sergeant.  He had 6 years and 10 days of service.

On 16 March 1991 the applicant enlisted in the Army for four years.  His enlistment documents show that on 27 February 1991 he received a medical waiver to enlist, and that he enlisted for assignment as a special operations medical sergeant.  He was assigned to Fort Bragg, North Carolina as a medical NCO on 26 March 1991.  

The applicant completed a 12 week MFFP course at Fort Bragg in 1992.

In September 1992 the applicant was awarded the Meritorious Service Medal for providing life-saving treatment to three individuals injured in a car collision on interstate 95 in Virginia.  In September 1993 he received the Army Achievement Medal for his achievements during exercise Tradewinds ’93, which involved, among other things, deploying to St. Lucia and setting up a medical clinic/triage area under adverse conditions.

On 17 February 1994 the applicant was reassigned to the 1st Special Warfare Training Group at Fort Bragg as an instructor.  A 3 March 1994 order shows that he was required to perform parachute duty effective on 17 February 1994.   

On 26 July 1994 the applicant reenlisted for 6 years and received a selective reenlistment bonus.  

The applicant’s NCO evaluation reports show for the periods indicated:

•	April 1991 through March 1992 – Passed the physical training test in         July 1997.  Rater stated he had excellent physical endurance.
•	April 1992 through January 1993 – Passed the physical training test in October 1992.  His rater stated he had outstanding physical endurance.
•	February 1993 through August 1993 – Passed the test in May 1993.  His rater stated that he maintained physical conditions levels exceeding Army standards, that he displayed enthusiasm in assigned duties and that he scored 306 on the last physical training test.
•	September 1993 through February 1994 – Passed the test in           November 1993.  Rater stated that he surpassed Army and unit physical training requirements, that he performed well under stress and pressure, and that he showed enthusiasm in even difficult tasks.
•	March 1994 through May 1994 – Passed the test in February 1994 scoring 291.  His rater stated that he continually exceeded standards in both physical fitness and personal appearance.
•	June 1994 through December 1994 – Passed the test in October 1994.  His rater stated that he challenged his physical training group with rigorous and diverse training, and that he continually displayed confidence and enthusiasm in his work ethic.
 
On 26 January 1995 the applicant was awarded the Military Free Fall Parachutist Badge.

On 1 November 1995 the applicant was promoted to Sergeant First Class.

On 21 March 1996 the applicant requested separation from the Army under the provisions of Army Regulation 635-200, paragraph 5-3.  He stated that he based his request due to his firm belief that the involvement of members of the United States Armed Forces in United Nations military operations was unconstitutional.  He was counseled concerning his request, and stated that he understood the information provided in that counseling. 

The applicant was discharged on 12 December 1996 at Fort Bragg.  His          DD Form 214 shows that his rank was Sergeant First Class and that he had        5 years, 8 months, and 17 days of service.

In a 31 July 1998 rating decision the VA awarded the applicant a 10 percent disability rating for bilateral ankle condition and a 0 percent rating for his bilateral knee condition.  He had been awarded a 10 percent rating, which was increased to 60 percent on 9 March 1998 for lumbosacral strain, degenerative disc disease L3-4 with severe limitation of motion and back and leg pain, also claimed as chronic pain/reflex sympathetic dystrophy.  He was awarded a 20 percent rating for SP, left subluxation peroneal tendon; a 10 percent rating for SP, subluxation peroneal tendon right ankle; a 10 percent rating for hypertension; a 10 percent rating for right trigger thumb release, postoperative; and 10 percent rating for left trigger thumb release; a 0 percent rating for degenerative joint disease, left foot, right knee strain, and patellar chondromalacia, left knee.  He received a combined service connected disability rating of 80 percent. 

Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Paragraph 5-3 of that regulation states, in part, that the separation of soldiers for the convenience of the government is the prerogative of the Secretary of the Army.  Except as delegated by this regulation or special DA directives, it will be accomplished only by the SA’s authority and based on an SA determination that separation is in the best interests of the Army.

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.

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, 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 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.

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 requested separation and was discharged by order of the Secretary of the Army based on a determination that his separation was in the best interest of the Army.  Absent information to the contrary, the applicant was physically fit for retention or separation at the time of his discharge, notwithstanding his protestations to the contrary.  The Board has taken into consideration the letters of support he has submitted with his application; nonetheless, his continued performance of 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.  He requested separation and his request was granted.

2.  The Board also notes that he reenlisted in the Army for 6 years in July of 1994, indicating that he was physically fit for retention, and that at least until January of 1995, the applicant was physically fit, as evidenced by his NCO evaluation reports, all of which indicate from the time of his enlistment in 1991 through December of 1994 that he was in superb physical condition.  He was promoted to Sergeant First Class in November 1995, accepted that promotion, again indicating that he was physically able to perform his duties in his rank and MOS.

3.  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.

4.  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 he can be medically retired or separated.

5.  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 him for VA benefits based on an evaluation by that agency.

6.  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.
 
7.  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.

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

9.  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.

10.  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

___sk___  ___rvo___  ___le___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028209	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000405	
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.