MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 December 2000                   
	DOCKET NUMBER:   AR2000035881

	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. Ann M. Campbell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		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 his discharge be changed to a medical retirement.

APPLICANT STATES:  That prior to his discharge he was not advised that his military-incurred disabilities (tinnitus, left shoulder condition, and right elbow neuritis) should have required a medical evaluation board to either reclassify him into another military occupational specialty (MOS) or determine him unfit for duty.
He believes that his conditions made him unfit for duty in his MOS because he would have been a liability to his crew and a hazard should his unit have been called up for combat action.  Supporting evidence is as listed on the DD Form 149.

COUNSEL CONTENDS:  Counsel makes no additional contention.

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

He enlisted in the Regular Army on 22 October 1980.  He completed basic training and advanced individual training and was awarded MOS 63Y (Track Vehicle Mechanic).

The applicant was first treated for a complaint of left shoulder pain in November 1980.  The next evaluation was in 1989 when he received several extended temporary physical profiles.  An arthroscopy was completed in March 1991 and was noted to be normal.  In April 1991, he was diagnosed with soft tissue, extra-articular (scapulothoracic) popping.  On 22 May 1991, he was given a P2 profile for recurrent left shoulder pain and assignment limitations of “No pushups except for APRT, limit overhead lifting with (L) arm.”

The applicant was treated for right elbow pain four times in 1986.  No later treatment is noted in his medical records.  There is no evidence to show he was treated for tinnitus.  

On 4 February 1992, the applicant was released from active duty under the Special Separation Bonus program.  His Personnel Qualification Record, DA Form 2-1, shows that he performed duties in MOSs 63Y, 63B, or 63H throughout his service although the entry for his last unit of assignment effective 12 March 1991 contains no entry for duty MOS.  As part of the SSB program he was required to enlist in the U. S. Army Reserve (USAR) as a member of a Troop Program Unit and attend regularly scheduled unit training and annual training.  He enlisted in the USAR on 5 February 1992 for 3 years in primary MOS 63Y and assignment MOS 63Y.  He was honorably discharged effective 7 February 1995 upon completing his contractual obligation.

In December 1992, the VA awarded the applicant service-connected disability compensation for tinnitus (10 percent); chronic sprain and subluxation, left shoulder (10 percent); and ulnar neuritis, right elbow (10 percent).

Army Regulation 600-60 implements and establishes operating procedures for the Physical Performance Evaluation System.  Chapter 2 states that all soldiers who are issued a permanent physical profile with a numerical factor of 3 will be mandatorily referred for evaluation to an MOS Medical Retention Board (MMRB).
Soldiers with a numerical factor of 2 will not be referred to the MMRB.  However, if the assignment limitations are overly restrictive, the soldier should be referred to the medical community for permanent profile reevaluation.

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 purposes of his employment on active duty. 

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.

In the processing of this case an advisory opinion was obtained form the Medical Advisor to the Army Review Boards Agency.  The applicant rebutted the advisory opinion.  He stated that since he was on profile for almost one year and then given a permanent profile he was unable to function in his primary MOS for well over a year.  Therefore, he should have been required to have a medical evaluation board.  The year of temporary profiles plus the permanent profile for his left shoulder condition rested his right elbow symptom making this condition less obvious to the military.  He did not notice that his hearing loss/tinnitus was permanent until he left the noisy surroundings in which he worked while in the service.

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.  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 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.  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. 

3.  The applicant was not required to appear before an MMRB as the record of evidence shows that he never held a permanent 3 profile and his P2 profile was not overly restrictive.  There is no evidence of record to show that he was not performing in his MOS during the time he was on profile or to show that his supervisors or commander believed he was not physically qualified to perform those duties.  In addition, the applicant enlisted in the USAR after his release from active duty in primary MOS and assignment MOS 63Y.  There is no evidence to show he was physically unfit to perform those duties while in his USAR assignment. 

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

__amc___  __alr___  __jam___  DENY APPLICATION

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

INDEX

CASE ID	AR2000035881	
SUFFIX		
RECON		
DATE BOARDED	20001205	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.