MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           1 March 2000                   
	DOCKET NUMBER:   AR1999028534

	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. George D. Paxson		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr.  John Saputo		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 when he went for his retirement physical at Fort Carson, Colorado in late October 1994, he was informed that he did not need a new physical examination for retirement in view of the fact that he had received a quadrennial physical examination in July 1994.  The physician’s assistant also informed him that there was no time before his retirement date for a medical board, and that his disabilities could be taken care of by the VA after his retirement.  He made a request in December 1994 to be extended on active duty until he received a complete and thorough physical examination, but was informed essentially that [any problems that he had] could be taken care of by the VA.  The regulation states that he had to agree to using the quadrennial physical examination as his retirement physical examination, and this was not done.  After he retired he received a service connected disability rating from the VA.

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

The applicant entered on active duty with the Marine Corps in 1960, serving in  an enlisted status and as a commissioned officer.  He was appointed a Captain in the Army Reserve in 1972.  In 1979 he enlisted in the Army Reserve, and in 1983, the Colorado Army National Guard.  He served on active duty in an Active Guard/Reserve (AGR) status beginning in 1986 until his retirement.  

The applicant completed the field artillery cannon advanced NCO course, a two month course, on 15 March 1988.  The completion report shows that he passed the Army physical fitness test.  The applicant’s NCO evaluation reports going as far back as 1984 show that he continually passed the Army physical fitness tests, the last instance in May of 1994.

On 19 October 1994 the applicant was assigned to the transition center at Fort Carson, Colorado for separation processing.  He was authorized 67 days transition leave.  He was released from active duty on 31 December 1994 and transferred to the Retired Reserve.  He had over 20 years of active service and over 8 years of inactive service.  

The copy of the report of medical examination that the applicant provides with his request shows that it was a quadrennial physical examination conducted on       11 July 1994, and that the applicant was medically qualified for retention/retirement with a physical profile serial of 1 1 1 1 1 1.  That report did indicate that he had a history of deformity with his right hallux (big toe).  In the report of medical history that he furnished for the examination, the applicant noted that he had, or had had numerous problems, to include eye trouble, ear, nose, or throat trouble, sinusitis, hay fever, frequent indigestion, stomach, liver, or intestinal trouble, broken bones, rupture/hernia, piles, or rectal disease, recent gain or loss of weight, and foot trouble.  He stated that he had colon surgery and a hernia operation.  The applicant stated that he was in good health.

A 24 October 1994 consultation sheet indicates that the applicant was referred to orthopedics because of pain in his right hallux.  A 14 December 1994 consultation report indicates that the applicant was seen in orthopedics and surgical options were discussed.  A note on that report shows the applicant was retiring in 17 days and would have to follow up with the VA.

On 7 December 1994 the applicant requested assistance from a member of congress (MC) in order to be retained on active duty to have surgery on his foot and to receive a complete and thorough physical examination.  He informed the MC that he had been informed in September that he had not been selected for retention and would be retired on 31 December 1994.  He stated that because he had previously received a physical examination in July 1994, the retirement physical examination that he received on 25 October was only perfunctory.  He told that physician’s assistant that he had broken the big toe on his right foot a couple of years before and it pained and bothered him.  He made out a referral slip and said that he should be able to have it corrected at a VA hospital.  He was informed by his AGR manager, however, that he could not be treated at the VA hospital, as the [Colorado Army National Guard] was still paying for emergency surgery that he received at the VA hospital for colon surgery in January 1994.  He finally obtained an appointment at the Fort Carson hospital on 14 December, but stated that if surgery was necessary, he would not have time for the surgery prior to his retirement.  He informed the MC that he had been on transitional annual leave since 26 October.  He stated that his supervisor had been extended on active duty so that he could have knee surgery and a complete, thorough physical examination.  He went on to say that he should be treated likewise.  

On 3 February 1995 the National Guard Bureau informed the MC that the applicant was qualified for retirement and might be discharged as scheduled; and since he had over 20 years of service, the applicant qualified for continued medical care.

In a 4 October 1995 VA rating decision, the applicant was awarded a service connected disability of 0 percent for residuals right inguinal hernia; 0 percent for bilateral hearing loss; 10 percent for tinnitus; 0 percent for sinusitis; 0 percent for residuals right great toe injury; and 0 percent for diverticulosis with sigmoid resection.  His claim for service connection for bilateral knee disability, deviated nasal septum and low back disability was determined to be not well grounded.   
The VA decision indicated that the applicant had complained of right great toe pain in August 1989 after playing softball and x-rays were negative and assessment was of a trauma to the right foot.  No further complaints of or treatment were shown until October 1994 when he complained of right foot pain and impression was of an osteophyte of the right hallux distal phalanx.  On the VA medical center examination the applicant report that since the right foot injury he had developed a bone spur.
 
In a 21 June 1999 VA rating decision, the applicant was awarded a service connected disability of 40 percent for degenerative disc disease, herniated nucleus pulposus; 0 percent for granuloma, calcified, right upper lobe; 10 percent for residuals, diverticulosis with sigmoid resection; 10 percent for abdominal scar, from resection of the sigmoid colon, 100 percent effective 18 November 1997 based on surgical or other treatment necessitating convalescence, decreased to 10 percent effective 1 January 1998; 10 percent for sinusitis; and continuation of 0 percent for hearing loss and 10 percent for tinnitus.  Service connection for positive tuberculosis test was denied.

Army Regulation 40-501, then in effect, provides for medical fitness standards for retention and separation, including retirement.  Paragraph 1-5 states that medical examiners will report as medically acceptable all individuals who meet the medical fitness standards established for the particular purpose for which examined.  Chapter 3 of that regulation gives the various medical conditions and physical defects which may render a soldier unfit for further military service, and states in pertinent part, that soldiers with conditions listed in that chapter will be evaluated by a medical board and will be referred to a physical evaluation board.

Paragraph 8-16 states in effect that medical examinations will be valid for one year when accomplished incident to retirement, discharge, or release from active duty.  If the examination is accomplished more than 4 months prior to retirement, discharge, or release from active duty, DA Form 3081-R (Periodic Medical Examination (State of Exemption) will be attached to the original SF 88 (Report of Medical Examination).  DA Form 3081-R provides for completion of a statement by an individual to the effect that he underwent a medical examination in conjunction with [periodic physical examination] and to the best of his knowledge there was no significant change in his medical condition since the accomplishment of that medical examination. 

Army Regulation 40-501, paragraph 8-14, now in effect, states that if the examination is accomplished more than 4 months prior to release from active duty, discharge, or retirement (or 4 months prior to transition leave if the soldier requests it), DA Form3081-R will be attached to the original SF 88.  

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.

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.

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 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 Board agrees with the applicant that the strict requirement of the regulation then in effect, pertaining to the validity of the physical examination was not met, i.e., his July physical examination was some 5 plus months prior to his retirement, and he did not have the opportunity to complete a DA Form 3081-R (stating that his medical condition had not changed since his last physical examination).  However, he did inform a physician’s assistant that he had a pain in his big toe, that person referred him to orthopedics, and he was seen on        14 December by orthopedics.  Although the regulation in effect at the time of his separation does not take into consideration the conduct of a physical examination prior to a soldier taking transitional leave, the applicant was in fact  on transitional leave from 26 October 1994 until his retirement.  He apparently made no attempt to have another physical examination prior to his retirement.  Service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or retirement.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.  

2.  Notwithstanding the applicant’s contentions, this Board believes that he had a complete and thorough medical examination, and that the applicant did not incur any disability from the time of his July 1994 physical examination until his retirement that made him unfit for retention.  The Board also believes that another physical examination was unnecessary.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary.
Furthermore, 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.

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.  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

___gdp__  ___js____  ___mmd_  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028534	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000301	
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.