MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  11 May 2000
	DOCKET NUMBER:   AR1999029053

	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		Director	
	Mr. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. James M. Alward		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:  Correction of his military records by reinstating him on active duty for a medical evaluation board determination of eligibility for medical retirement.

APPLICANT STATES:  In effect, that he resubmitted his request in response to a letter from the Board stating that his prior application could not be processed due to the nonavailability of complete military records, other evidence, and documentation necessary to conduct a review of his case.  

The Board noted that his latest application contained documentation including his family doctor’s statement, his rebuttal to an advisory opinion, and records obtained from the VA such as his Army medical records, his DA Form 2-1, (Personnel Qualification Record), his DD Form 214, separation document, and his VA disability rating decision documents.  

COUNSEL CONTENDS:  In effect, that the applicant’s available records support his request for relief.  Counsel further states that his knee injury, his back ailment, and his asthma were considered service-connected conditions sufficient to merit a combined disability rating of 40 percent from the VA therefore, he should be evaluated for medical retirement.

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

He had prior USAR service from 15 September 1986 to 27 January 1988.  On 28 January 1988, he entered a 4-year enlistment in the Regular Army (RA) in military occupational specialty (MOS) 51B, carpentry masonry specialist.  He was promoted to specialist (SPC), his highest attained rank, on 1 June 1989.  He reenlisted on 9 October 1991, for 3 years.  On 9 March 1994, he extended his 3-year enlistment for 10 months to the retention control point for his rank.  His new expiration of term of service (ETS) was 8 August 1995.

Review of his available medical records indicated that he sustained injury to his right knee while playing basketball in December 1991, which was later diagnosed as a possible tear to the anterior cruciate ligament (ACL) and a meniscal tear.  He underwent surgery in January 1992, and extensive, follow-on, long-term, rehabilitative physical therapy.  A later re-injury resulted in additional surgery in August 1992, to repair his ACL and remove his meniscus.  His medical records also indicated that he received repeated medical care for asthmatic symptoms, shortness of breath, chest pain, allergies, and bronchitis.  There was nothing contained in his available medical to indicate that these ailments interfered with his MOS duty performance or that he was referred to a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB).

His medical records contained a DA Form 3349, Physical Profile, dated 22 June 1993, that indicated he had a permanent (P3) profile for his lower extremities (L) which 

prevented running, jumping, stooping, crawling, marching, and no activity on uneven terrain.  This document authorized the wear of a brace while in uniform and an alternative aerobic test for the Army Physical Fitness Test.  There was nothing contained in this document to restrict his MOS duties or other routine soldier training.

A second DA Form 3349 dated 3 January 1994, indicated that he had a 
P2 profile for Pseudo Folliculitis Barbae, which prevented him from shaving and required him to maintain a beard trimmed to within ¼ inch.

His report of medical history and report of medical examination dated 2 July 1995, qualified him for separation.  His DD Form 214 indicated that he was separated on 8 August 1995 with an Honorable Discharge Certificate under the provisions of Army Regulation (AR) 635-200, chapter 4, for completion of required active service.  He had completed 8 years and 4 days of creditable service.

AR 40-501, chapter 3, as amended, provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability 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. 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.  The regulation further provides 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.

The regulation also states that the medical treatment facility commander with the primary care responsibility will evaluate those referred and will, if it appears as though a member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEB.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and specialty with the medically disqualifying condition.  The fact that an individual has a medically disqualifying condition does not mandate separation from the service.  Fitness for duty, within the parameters of the individual’s grade and military specialty, is the determining factor regarding separation.  If the PEB determines that an individual is physically unfit, it will recommend a percentage of disability to be awarded which, in turn, determines whether that individual will be discharged with severance pay or retired.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined the individual suffers from an impairment that disqualifies the individual from further military service.  In this regard, the Army rates only conditions determined to be physically unfitting, thereby compensating the individual for the loss of a career. 

A VA disability rating decision document revealed that he was awarded a combined disability rating of 40% for asthma, bronchitis, right knee condition, and lower back pain.

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. 

During the processing of his request, the staff of the Board obtained an advisory opinion (COPY ATTACHED) from the Army Review Boards Agency, Medical Advisor.  The opinion stated, in effect and in pertinent part, that a complete and careful review of all-available and submitted medical records and notes was conducted; and that his request was based on his VA disability rating of 40 percent.  The advisory opinion also summarized the course of treatment relating to his knee injury.  The advisory opinion also indicated that the applicant was a smoker and that in June 1994, a Pulmonary Function Test revealed a moderate obstructive lung defect which was successfully treated with medications.  This condition did not result in the issuance of a physical profile.  The advisory opinion further stated that no disqualifying conditions were found in accordance with AR 40-501, chapter 3; that in February 1995, his periodic physical examination found him qualified for continued service and his ETS examination found him qualified for separation; that his doctors did not request MEB processing nor did he ask for it; and that there was no medical reason to change his discharge status.

In his rebuttal to the advisory opinion, the applicant stated, in effect, that he provided supporting documentation to show that his medical problems resulting from his active military service for which he is currently receiving treatment from both the VA and his family doctor, justifies MEB processing and medical retirement.  He further stated that he is receiving benefits from the VA and only wants military service benefits associated with hospital, commissary, and exchange usage, and an identification card for himself and his family.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  The Board concludes that while the applicant’s medical problems were very unfortunate, the evidence of record clearly shows that he received appropriate medical care while on active duty and none of his conditions disqualified him from military service or warranted his referral for medical separation processing under the provisions of AR 40-501, chapter 3.

2.  The Board further concludes that the disability rating action by the VA does not demonstrate any error or injustice on the part of the Army.  The VA assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to follow suit.

3.  His administrative separation was accomplished in compliance with applicable laws and regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

4.  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.

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

__RO___  __CP____  __JA___  DENY APPLICATION

						Carl W.S. Chun
				      Director, Army Board for Correction
					         of Military Records

INDEX

CASE ID	AR1999029053	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000511	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19950808	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	COMPLETION OF REQUIRED SERVICE	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.