MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            6 July 2000
	DOCKET NUMBER:   AR2000037240

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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 he be provided disability benefits.

APPLICANT STATES:  In effect, that he received a disability while on active duty and never received any associated benefits subsequent to his 1970 discharge. He claims he was never informed of his eligibility for disability benefits at the time of his discharge.  In support of his claim the applicant refers the Board to records pertaining to him maintained by the Department of Veterans Affairs (VA).

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

On 28 February 1968, he entered the Regular Army for 2 years.  He successfully completed basic training at Fort Bragg, North Carolina and was assigned to overseas duty in Europe, where he received training in military occupational specialty (MOS) 44B (Body & Fender Repairman).  His records also show that on 19 December 1968, while serving in Europe, he was promoted to the rank of specialist/E-4, which is the highest rank he attained while on active duty. 

The medical record includes a Standard Form (SF) 88 (Report of Medical Examination), pertaining to the applicant.  This document verifies that he underwent a complete separation physical examination at the 761st Medical Detachment, APO 09360, on 12 November 1969.  Block 74 (Summary of Defects and Diagnosis) of the form contains no notes or entries that would indicate that any medically disqualifying conditions of disabilities were discovered during this physical examination.  The SF 88 also contains an entry that confirms that the applicant was found medically qualified for retention/separation by competent medical authority and that he was medically cleared for separation as a result of this physical examination.  

A Department of the Army (DA) Form 173 (Installation Clearance Record) pertaining to the applicant is included in the available records.  This document was signed by the applicant and the proper separation processing official on 
6 February 1970.  It verifies that the applicant successfully completed his separation processing and was properly cleared by the appropriate agencies, to include the medical treatment facility.  There is no evidence that he ever raised a medical issue during this period of his separation processing.  

The evidence or record also includes a Department of Defense (DD) Form 214 (Armed Forces of the Untied States Report of Transfer or Discharge), issued to the applicant on 13 February 1970, the date of his release from active duty.  It shows that he was honorably released from active duty after completing 1 year, 11 months, and 16 days of active military service.  

The DD Form 214 also shows that the applicant was separated, under the provisions of Army Regulation 635-200, by reason of early separation from overseas.  The form contains no reference to his suffering from any disqualifying medical conditions or disabilities on the date of his separation.  On the date of his separation the applicant authenticated the DD Form 214 and its contents with his with his signature and there is no information that would suggest that he raised any medical issues at this time. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Provisions of the regulation in effect at the time of the applicant’s separation provided for the early release of members returning from overseas tours.  The service of members separating under these provisions was normally characterized as honorable.  

Title 10 of the United States Code, chapter 61, contains the legal authority for the retirement or separation of members for physical disability.  Section 1201 states, in pertinent part, that in order to be eligible for a disability retirement or separation a member must be found physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.  

In support of his application, the applicant referred to VA records pertaining to him regarding his physical disability.  However, he provided no documentary evidence related to these records and there is no available information in regard to any disability determinations made by the VA.  In addition, there is no evidence to show that the applicant is receiving VA disability benefits.  

Title 38 provides the law in regard to authorizing veterans benefits, chapter 
3 covers programs administered by the Department of Veterans Affairs.  Sections 310 and 331, provide the legal authority to the VA to award compensation for a medical condition which was 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 Board noted the applicant’s contention that he was injured on active duty and is entitled to disability benefits.  However, after carefully evaluating the evidence of record and the independent evidence submitted by the applicant, the Board concluded this claim lacked merit.  

2.  The available medical records do not indicate that the applicant incurred any medical condition, while entitled to receive basic pay, which was so severe as to render the applicant medically unfit for retention on active duty.  At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability. 

3.  The Board further noted, as evidenced by the DA Form 173 contained in the record, that the applicant completed all separation processing.  This included his being cleared for separation by the medical treatment facility, along with all the other appropriate agencies.  Therefore, the Board was satisfied that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the applicant’s separation processing.  

4.  Although the applicant provided no evidence to show that he was entitled to VA disability benefits, the Board did note the reference he made, to VA records pertaining to his disability, in support of his application.  Therefore, the Board felt compelled to advise the applicant of the difference between the military and VA disability determinations.  

5.  Title 10, United States Code, chapter 61, provides the legal authority for military disability retirement or separation.  It requires that a member be found physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay in order to be processed for separation under these disability provisions of the law.  

6.  Title 38 of the 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.  

7.  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.  Therefore, there are times when it is appropriate for a member to receive disability benefits from the VA even though they did not qualify for Army disability benefits at the time of their separation.

8.  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.

9.  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

___cmf__  ___ew___  ___jpi___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037240	
SUFFIX		
RECON		
DATE BOARDED	2000/07/06	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1970/02/13	
DISCHARGE AUTHORITY	AR 635-200 	
DISCHARGE REASON	Early Separation From Overseas	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.0000	
2.		
3.		
4.		
5.		
6.