MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 May 2000                   
	DOCKET NUMBER:   AR2000036414

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James P. Stueve		Member	
	Ms. Carol Jo Suiter		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 separation under the Voluntary Incentive Program – Special Separation Benefit (SSB) be changed to a medical retirement.

APPLICANT STATES:  That the VA rated him at 70 percent disabled (50 percent compensable) immediately after his separation.  He incurred a severe parachuting impact injury while on active duty.  His separation physical evaluation identified and confirmed the injuries but the physical was improperly conducted.  Rather than processing him through a physical evaluation board (PEB), he was simply discharged.  

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

He entered active duty on 29 April 1979 as an infantry officer.  He was promoted to major on 1 February 1991.

All his Officer Evaluation Reports (OERs) show that he always received a “1” in part IVa(3), Maintains appropriate level of physical fitness, and that he never had a physical profile.  In all his OERs during periods in which he served in an infantry officer position (he received several OERs during which periods he served as a recruiting officer) he received a “1” in part IVa, Performs under physical and mental stress.  On all his OERs during periods in which he served in an infantry officer position (to include his last OER for the period ending             29 September 1992), he received extremely commendable comments from his raters and senior raters concerning his duty performance.

On 24 February 1992, the applicant’s request to separate under the Voluntary Incentive Program – SSB was approved.  

On 1 September 1992, the applicant completed his separation physical examination.  He noted on his Report of Medical History that his health was “OK.” He noted several medical problems, to include a knee injury, a dislocated shoulder and a back injury.

On 29 September 1992, the applicant was released from active duty under the fiscal year 1992 Voluntary Incentive Program - SSB after completing 13 years,    5 months and 1 days of creditable active service.

On 4 May 1993, the VA awarded the applicant a combined disability rating of 50 percent for residuals, right shoulder injury (20 percent); acute left epididymitis (a testicular condition) (20 percent); fracture L5 with degenerative changes           (10 percent); post-operative residuals, left knee injury (10 percent); and tinnitus (10 percent) effective 30 September 1992.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  In pertinent part, it states 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.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that a soldier is fit.  Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

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.

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 the aforementioned 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.  Any rating action by the VA does not compel the Army to modify the type of separation given accordingly. 

3.  The applicant’s earlier injuries did not make him unfit for duty.  He was promoted to major on 1 February 1991.  All his OERs showed he passed his Army Physical Fitness Tests and he performed all his duties in an outstanding manner.  His release from active duty OER, ending date 29 September 1992, rated him as “1” in maintaining an appropriate level of physical fitness and performing under physical and mental stress.  Rater and senior rater comments were highly commendatory.
4.  The “presumption of fitness” rule applies unless the preponderance of evidence shows he was physically unable to perform adequately the duties of his office, grade or rank.  The evidence shows he was able to perform his duties in an outstanding manner up until the date of his separation and so he was not entitled to be processed through a PEB.

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

__lls___  __jps___  __cjs___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR2000036414	
SUFFIX		
RECON		
DATE BOARDED	20000504	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.