MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 August 2000                   
	DOCKET NUMBER:   AR2000035823

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Linda D. Simmons		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, that his disability rating be increased.

APPLICANT STATES:  That his hearing loss was not considered by the Physical Evaluation Board (PEB) in January 1986.  The PEB said it was not the result of combat action or war.  This is untrue.  The hearing loss was the direct result of combat action in Vietnam in 1972. 

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

He enlisted in the Regular Army on 7 June 1968.  He served two tours in Vietnam from December 1968 – December 1969 and from August 1971 – March 1972 where he performed duties as an 11E10 loader and as an 11C mortar gunner/scout driver.  He was awarded his first physical profile for high frequency hearing loss in October 1970.  He was reclassified into military occupational specialty (MOS) 76Y (Supply Specialist) in 1973.  

On 7 November 1985, a medical evaluation board (MEB) evaluated the applicant for chief complaints of bilateral knee pain and chronic low back pain along with a neurosensory hearing loss.  He had been given a P2 profile for soft kneecaps and his unit felt that he could not function in his MOS with that profile.  The MEB referred him to a PEB with diagnoses of chondromalacia of patella, bilaterally; chronic mechanical low back pain; and neurosensory hearing loss.

On 22 January 1986, a PEB found the applicant physically unfit for duty by reason of chondromalacia patellae (10 percent) and chronic low back pain (10 percent).  The PEB noted that his diagnosis of neurosensory hearing loss was below the minimum for rating.  He was recommended for separation with severance pay with a 20 percent disability rating.  The Physical Evaluation Board Proceedings, DA Form 199, item 10c indicates that the disability did not result from a combat related injury.  

On 20 March 1987, the applicant was discharged, by reason of a physical disability, with severance pay.  He had completed 18 years, 9 months and         14 days of creditable active service.  (He had requested continuation on active duty but a Department of the Army Qualitative Management Program bar to reenlistment had overridden his request.)

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.  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 soldier reasonably may be expected to perform.

The VA Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  

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.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

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 this requirement.

2.  The evidence of record shows that the applicant’s hearing loss was considered by the PEB.  The Board notes that the applicant served for 15 years after he was given his first physical profile for high frequency hearing loss and was not referred to a PEB until his knee and back conditions made it difficult to perform his duties.  Therefore, the Board concludes that his hearing loss did not make him unfit for duty.

3.  The entry in item 10c of the DA Form 199 indicating that the disability did not result from a combat related injury is correct.  The disabilities for which the applicant was found unfit for duty were his knee and back conditions.  There is no evidence of record to show that these two conditions were the result of his service in Vietnam. 

4.  If the VA has given the applicant a disability rating for his hearing loss, whether as a result of a subsequent deterioration of this condition or not, such rating action by the VA would 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.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. 

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

__svw___  __mhm___  __lds___  DENY APPLICATION

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

INDEX

CASE ID	AR2000035823	
SUFFIX		
RECON		
DATE BOARDED	20000817	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.	108.07	
3.		
4.		
5.		
6.