MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  23 March 2000
	DOCKET NUMBER:   AR1999028777

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley Powell		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Roger W. Able		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:  That he be medically retired due to a service-connected disability.

APPLICANT STATES:  In effect, that while assigned to the Individual Ready Reserve, he was ordered to report for his annual physical examination and upon doing so, he was informed that he was no longer eligible for further military service in the USAR due to a previous operation involving reconstruction and insertion of a stainless steel pin into his right shoulder.  Also, in a detailed personal statement, he stated, in effect, that since his discharge from the USAR, he applied for disability compensation to several government agencies including the veteran’s organization (presumably the VA).  He was granted a 10% disability rating and $94.00 per month in compensation.  He further stated that he was recently diagnosed with degenerative arthritis and experiences severe pain in his feet, knees, hips, back, shoulders, and neck 24 hours a day.  He also states that he developed ulcers from his pain medication; that he is now unable to work; and that 10% disability compensation is not enough to support him.  He adds that his employer has been sympathetic so far since he has not worked for the last 
7 out of 10 days this pay period however, he believes that the Army should have medically retired him instead of discharging him when he could no longer perform to standards.

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

He had 10 years, 8 months and 19 days of prior active enlisted service in the Regular Army (RA) that ended on 23 August 1972.  He initially enlisted in the Arizona Army National Guard (AZARNG) on 13 October 1973 and was discharged on 12 October 1974.  After a break in service, he enlisted again in the AZARNG on 21 December 1983 for a period of 6 years with an expiration of term of service (ETS) on 20 December 1989.  

His latest NGB Form 22, report of separation and record of service, indicated that he was separated from the AZARNG and transferred to the USAR Control Group (Annual Training) for completion of 2 years, 10 months and 10 days of a contractual obligation under the authority of NGR 600-200, paragraph 7-10j, orders 31-34 dated 20 February 1987, upon request by service member.  He had completed a total of 15 years, 6 months and 6 days of creditable service. 

NGR 600-200 pertains to enlisted personnel management of NG personnel.  The Board noted that paragraph 7-10j does not exist, however, table 7-1 rule J applies to waivers of authorized periods of extension of service and states, in pertinent part, that soldiers otherwise eligible to extend or immediately reenlist, but who fail to take or pass an Army Physical Fitness Test (APFT) within 
18 months before expiration of term of service, may be extended for not more than 6 months or up to one year if on a temporary profile.

An USAR Personnel Center (now known as Army Reserve Personnel Command or ARPERSCOM) order D-12-106365 dated 19 December 1989, indicated that he was discharged from the Ready Reserve component of the USAR on 20 December 1989. 

There was nothing contained in his available records indicating that he requested an extension or reenlistment in the USAR.  There was nothing contained in his available records to show that he received reconstructive shoulder surgery on his shoulder or that a pin was inserted in his shoulder.  Also, there was nothing in his available records to indicate that he was placed on a temporary or permanent profile; or that he was referred for medical evaluation board or physical evaluation board (PEB) processing. 

Army Regulation 635-40 pertains to physical evaluation for retention, retirement, or separation of RA and USAR personnel and provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  Regarding Reserve Component (RC) personnel, the regulation states, in pertinent part, that in order to be compensated for disability while performing duty for 30 days or less, there must be a determination by a PEB, that the unfitting condition was the proximate result of performing duty.  This determination is different from a line of duty (LD) determination that establishes whether the individual was in a duty status at the time the disability was incurred and whether misconduct or gross negligence was involved.  Proximate result establishes a cause and effect relationship between the disability and the required duty.

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.  The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  The 
VA assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.

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.  Although the applicant’s NG separation document does not clearly show the specific reason for his voluntary separation and cites a questionable regulatory authority, his contentions regarding his shoulder ailment and his inability to 

achieve Army standards highly suggest that he requested separation because he could not participate in nor meet APFT standards.  

2.  In the absence of supporting documentation that would address the specific circumstances of his separation, the Board presumes administrative regularity in processing of his NG separation and transfer to the USAR for the completion of his remaining 2 years, 10 months and 10 days service obligation which expired on 20 December 1989.  His subsequent USAR discharge following his ETS appears to have been accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor appear appropriate considering all the facts of the case.

3.  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.

4.  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

_SP____  __JA___  ___RA___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028777	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000323	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19891220	
DISCHARGE AUTHORITY	AR135-178	
DISCHARGE REASON	ETS	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	145	
2.		
3.		
4.		
5.		
6.