MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 October 2000
	DOCKET NUMBER:   AR2000035671

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		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:  In effect, physical disability retirement.

APPLICANT STATES:  That he was discharged with a 70 percent permanent disability from combat wounds.  Per U.S. Army retirement “RSO” documentation, he should have been retired and placed on the temporary disability retirement list (TDRL) and, when his disability was rated at 70 percent, he should have been removed from the TDRL and permanently retired, not discharged from the Army. To support his request, the applicant submits a copy of his 1969 Veterans Administration (VA) disability rating.

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

He enlisted on 8 September 1966 and, after training as a radio operator, was assigned to Fort Campbell, Kentucky.  In November 1967, he was reassigned to Vietnam.

On 8 May 1968, the applicant suffered fragmentation wounds to his chest, back and left leg as a result of hostile action.  He was medically evacuated to William Beaumont Army Medical Center, El Paso, Texas.  After undergoing treatment, he was reassigned to Fort Huachuca, Arizona, where he served until expiration of his term of service.

A 31 July 1969 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1, indicating no physical or mental limitations for duty.  In the report of medical history the applicant furnished for the examination, he stated that his health was “good.”

The applicant was separated from active duty with an honorable characterization of service on 9 September 1969 and was transferred to the U.S. Army Reserve Control Group (Reinforcement).

Based on documents submitted by the applicant, it appears that the VA awarded him a service-connected disability rating (percentage unknown) for “scar of right chest, healed residuals of shell fragment wound right pleural cavity, left thigh scar with retained shell fragment,” effective 10 September 1969.

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 or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-1, provides that the mere presence of an 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.

Paragraph 3-2b(1) of the regulation provides 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.

Paragraph 3-2b(2) further provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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 provide treatment and to award compensation for disabilities which were incurred in or aggravated by active military service.

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 applicant was provided a complete separation physical examination on 
31 July 1969 and was found to be medically qualified for separation.

2.  The applicant’s military service was not interrupted by physical disability.  Notwithstanding the presence, or possible presence, of various medical conditions, there is no evidence of record, nor has the applicant provided sufficient evidence, which would indicate that he suffered from any medical condition of such severity that he was rendered unable to reasonably perform the duties of his office, rank, grade or rating.

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 Army purposes.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different law and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

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

__jns____  __rjw___  ___rtd___  DENY APPLICATION

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

INDEX

CASE ID	AR2000035671	
SUFFIX		
RECON		
DATE BOARDED	20001003	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.	110.00	
3.	142.00	
4.	145.00	
5.		
6.