MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 December 1999                   
	DOCKET NUMBER:   AR1999028798

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Hubert O. Fry, Jr.		Chairperson	
	Ms. Meta Waller		Member	
	Ms. Debra Williams		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 or placed on the Temporary Disability Retired List (TDRL).

APPLICANT STATES:  That his physical condition at the time of his release from active duty was such that he should have received a disability retirement or at least placed on the TDRL.  His service and VA medical records are provided as supporting evidence.

COUNSEL CONTENDS:  Counsel makes no contention.

EVIDENCE OF RECORD:  The applicant's military personnel records are not available.  The information contained herein was obtained from his service and VA medical records.

The applicant enlisted in the Regular Army on 30 June 1993.  He completed basic training and advanced individual training and was awarded military occupational specialty 92Y (Unit Supply Specialist).

In 1995, the applicant fell while marching and twisted his ankle, knee and left hip. He underwent knee reconstruction when it was found he had a torn anterior cruciate ligament.  On 28 February 1995, he was given a temporary physical profile of no running, jumping, marching or climbing.  It was renewed on 25 July 1995 and again on 3 October 1995.  On 31 October 1995, he was given another temporary profile (due to reconstruction of his knee) of no running, jumping, marching, climbing or walking on uneven surfaces for a period of one-year.

On 8 May 1996, the applicant completed an expiration term of service (ETS) physical examination.  He noted on his DD Form 93, Report of Medical History “I am in good health I am taking medications.”  He did list his knee, ankle and hip problems on the form.  He was found qualified for ETS.

On 29 June 1996, the applicant was released from active duty by reason of completing his ETS.

On 16 August 1996, the VA granted the applicant service connected disability ratings for status post anterior cruciate ligament repair left knee (20 percent), lumbosacral strain (10 percent), residual right great toenail removal (10 percent), residual trauma left hip (10 percent), and residual left ankle sprain (10 percent) for a combined rating of 50 percent.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  Disability compensation is not an entitlement; 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.  When a soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his rank or grade until the soldier is scheduled for separation creates a presumption that the soldier is fit.  Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

Title 38, U. S. 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.

On 4 August 1999, the Board informed the applicant that his military records could not be obtained from the repository in St. Louis, MO.  He replied in part “I am enclosing a copy of another letter, I received the same day.  This letter states that the records are available.”  However, there is no attached letter that states his military (personnel) records are available.

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 military personnel records are not available; however, the available evidence of record does not show that the applicant was unfit for duty. He was never given a permanent profile.  At the time of his ETS physical examination he noted his health was good.  He was found qualified for ETS.  
The “presumption of fitness” rule applies unless the preponderance of evidence shows he was physically unable to perform adequately the duties of his office, grade or rank. 
3.  The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to adjust the type of separation given accordingly.

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

__hof___  __mw____  __dw____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR19990928798	
SUFFIX		
RECON		
DATE BOARDED	19991221	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.