MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:           10 May 2000                   
	DOCKET NUMBER:   AR1999028501

	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. Carl W. S. Chun
Mr. Robert J. McGowan		Director
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, physical disability retirement.

APPLICANT STATES:  That following his discharge, he underwent an operation to repair a cerebral aneurysm and has since been rated 30 percent disabled by the Department of Veterans Affairs (VA).

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

He enlisted in the Regular Army for 6 years and training as a computer operator. Following basic training at Fort Jackson, South Carolina, and advanced training at Fort Gordon, Georgia, he was sent to Fort Irwin, California, for his first duty assignment.

The applicant served in Southwest Asia (SWA) from 28 August 1991 to 8 March 1992.  During that time, he was a computer operator for the SWA Theater Supply System.

Following his assignment in SWA, the applicant was reassigned to Fort Ord, California, in April 1992 as an information systems operator.  Although the applicant’s medical records are not available, VA records submitted by the applicant indicate that that agency’s review of his service medical records show that he was hospitalized at Fort Ord from November-December 1994 for Post Gulf War Syndrome-Phase II Evaluation.  He complained of headaches, but no neurological deficits could be found.  However, a CT scan of the head revealed a possible small left middle cerebral artery aneurysm.  An MRI was ordered, but there is no record of it having been completed according to the VA review.

The applicant served until he was honorably discharged on 13 February 1995 upon completion of his required active service.  He had 6 years of creditable active service and no lost time.  He was awarded two Army Commendation Medals, the Army Achievement Medal, the National Defense Service Medal, two SWA Service Medals, the Kuwait Liberation Medal, the Army Service Ribbon, the Overseas Service Ribbon, and the Sharpshooter Badge with Automatic Rifle Bar. He was a corporal (E-4).

Following his discharge, the applicant received a craniotomy for a left middle cerebral artery aneurysm on 25 August 1997.  On 4 May 1998, the VA issued a rating decision which found the applicant 30 percent disabled for:  skull defect 0.8 centimeter, status post craniotomy; postoperative left middle cerebral artery aneurysm; generalized anxiety disorder.  The disability was rated from 1 September 1997.

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 or her office, rank, grade or rating because of disability incurred while entitled to basic pay.  Section 1201, provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

Paragraph 3-2b(1) of the regulation provides 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.

Paragraph 3-2b(2) further provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.

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

2.  The applicant’s service medical records were not available to the Board; however his Official Military Personnel File (OMPF) does not indicate the existence of any medical condition, incurred while he was entitled to receive basic pay, which was so severe as to render the applicant medically unfit for retention on active duty.  His DD Form 214, Certificate of Release or Discharge From Active Duty, indicates that he was separated from active duty for reasons other than physical disability.

3.  The applicant’s military service was not interrupted by physical disability.  Notwithstanding the presence, or possible presence, of various medical conditions, there is no evidence of record, nor has the applicant provided sufficient evidence, which would indicate that he suffered from any medical condition of such severity that he was rendered unable to reasonably perform the duties of his office, rank, grade or rating.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different law and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

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	AR1999028501	
SUFFIX		
RECON		
DATE BOARDED	20000510	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	108.0000	
2.		
3.		
4.		
5.		
6.