MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

BOARD DATE:            24 May 2000                  
DOCKET NUMBER:   AR2000034273

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. John Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Meta Waller		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:  Reconsideration of his application to correct his records by granting him physical disability retirement.

APPLICANT STATES:  In effect, that he was not properly discharged.  He avers that he was not afforded proper medical care for his right foot following surgery, that the report of separation physical showed he complained of chronic pain in the lower extremities, and that he was unable to do toe to heel walking.  He indicates that because the VA granted him a 30% disability evaluation he should have been discharged for physical disability.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 29 April 1999 (COPY ATTACHED).

The applicant submits a 4 December 1995 report of a follow-up treatment for his right foot that shows he was still having some problems following surgery.  The doctor indicated that the applicant’s foot was doing well, that his profile should be continued and that his request for surgery on his left foot be followed up at the VA.  The applicant also submits his December 1995 profile sheet, the report of separation physical, his 3 March 1999 VA rating and three pages of VA treatment records for problems.

These documents were not available to the Board previously and constitute new evidence that requires Board review.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

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 law and regulations clearly state that to be separated for physical disability a soldier must be physically unable to perform duty as a result of that disability and that the presence of a medical condition that was acquired or aggravated while entitled to basic pay does not necessarily require an medical evaluation board or qualify an individual for physical disability separation.

2.  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. 

3.  The applicant’s military career was not interrupted as a result of a physical disability but as a result of his inability to maintain his weight within required limits.  At no time that he was on profile for problems of his lower extremities is there an indication that he was not able to perform his assigned duties.
 
4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

___JS___  __MDM _  ___MW__  DENY APPLICATION

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

INDEX

CASE ID	AR2000034273	
SUFFIX		
RECON	 	
DATE BOARDED	20000524	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.	108.02	
3.		
4.		
5.		
6.