MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  25 January 2001
	DOCKET NUMBER:  AR2000040891

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Lester Echols		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 records be corrected to show his discharge was based on physical disability and that he receive a rating of 100 percent.  

APPLICANT STATES: That his discharge should be based on total disability instead of being based on a draw down of active duty service.  He contends that the record of his mental and physical disabilities after Desert Storm fully support a discharge based on total disability.  He was pressured to get out because of the draw down of forces.  He had unsuccessfully sought discharge from medical boards based on disability on several occasions.

COUNSEL CONTENDS: That the applicant has been granted 100 percent disability by the Department of Veterans Affairs (VA).  The applicant contends he was not fit for worldwide duty in his chosen MOS (military occupational specialty). Attention was called to the injustice raised by the applicant and he contends that this submission, in conjunction with the official Army records, amply advances his contentions and substantially reflects the probative facts needed for equitable review.

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

During the period 16 June to 3 October 1983 (3 months and 18 days), he served in the delayed entry program of the Army Reserve.

On 4 October 1983, he enlisted in the Regular Army.  He completed his required training and was awarded MOS 76Y (Unit Supply Specialist).  He was advanced to pay grade E-4 effective 4 October 1984.

During the period 8 August to 23 September 1988, he served in Korea.

During the period 15 August 1990 to 28 February 1991, he served in Southwest Asia (Desert Shield/Storm).

On 13 February 1992, he voluntary requested separation under Army Regulation 635-200, chapter 16-8 (FY92 voluntarily Early Transition Program) with Special Separation Pay (SSP).  This request was approved on 4 March 1992.

On 21 September 1992, the Deputy Commander for Clinical Services, Womack Army Medical Center, Fort Bragg, North Carolina, in response to a congressional inquiry, indicated the applicant had been reevaluated by three orthopedic surgeons who determined he was fit for duty.

On 22 September 1992, a physical examination cleared the applicant for separation with a physical profile of 113211.

On 29 September 1992, he was honorably discharged, in pay grade E-4, under the above-cited regulation.  His separation document indicates he had 8 years, 11 months and 26 days of creditable service.  He received SSP in the amount of $19,520.01.  He was entitled to award of the Army Commendation Medal, the Good Conduct Medal with one oak leaf cluster, the National Defense Service Medal, the Army Service Ribbon and the Southwest Asia Service Medal (Saudi Arabia).  On 25 September, he reenlisted for and was transferred to the Army Reserve Control Group (Reinforcement), effective 30 September 1992.  He was honorably discharged on 26 September 1995.

On 23 October 1992, the Director of Professional Services, U.S. Army Health Professional Support Agency, Falls Church, Virginia, in response to a Presidential inquiry, indicated it was the judgment of the physician whether a member is medically boarded.  The applicant was advised to contact the VA, if he continued to have problems. 

On 1 June 1994, a VA Rating Decision increased his combined service connected disability to 30 percent from 20 percent based on an increased percentage for lumbosacral strain. 

On 24 June 1996, the Army Discharge Review Board found his discharge to be proper and equitable and denied his request for a change in the reason for his discharge.  He was notified effective 26 June 1996.

On 27 February 1997, a VA Rating Decision awarded the applicant a combined disability rating of 100 percent, as follows.  Post-Traumatic Stress Disorder (PTSD), 100 percent; chronic back strain, 20 percent; degenerative joint disease of the right knee, 20 percent; right leg condition, 20 percent; closed head injury,   10 percent; fracture of the 2nd toe, 0 percent; and hemorrhoids, 0 percent.

On 3 October 2000, the Medical Advisor to the Army Review Boards Agency (ARBA) opined that there is no evidence of requests or considerations of a Medical Evaluation Board by any other treating physicians.  Statements by competent medical authorities state that there was no reason or evidence to enter the applicant into the Army’s Physical Disability System.  The initial diagnosis of PTSD was not made until December 1994.  There is no medical evidence to change the discharge status at this time.

On 16 October 2000, the opinion by the ARBA Medical Advisor was forwarded to the applicant for his acknowledgment/rebuttal.  He did not respond.

Title 38, 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 the said medical condition reduces or impairs the social or industrial adaptability of the individuals 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.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties 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.

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.  The applicant was not treated for complaints during his period of active duty considered serious enough to be processed though the Army’s Physical Disability System.

2.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  Neither the applicant nor counsel has submitted any probative medical evidence to the contrary.

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 Department of the Army purposes.

4.  The applicant did not have any medically unfitting disability, which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

5.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.

6.  Since the applicant's medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

7.  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

__jh___  ___kh_____  ___le____ DENY APPLICATION

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

INDEX

CASE ID	AR2000040891	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010125	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.108	PDR	
2.		
3.		
4.		
5.		
6.