MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             7 December 2000                  
	DOCKET NUMBER:    AR2000040991

	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. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		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:  That his retirement for longevity be changed to a medical retirement.

APPLICANT STATES:  That his existing medical conditions were not considered. In support of his request, he submits a Department of Veterans Affairs (DVA) compensation decision letter stating that they found his following disabilities were service connected.  Asthma 30%; L3-5 degenerative disc disease, residual compression fracture L1 20%; residual left anterior interossesous nerve palsy 20%; degenerative joint disease, status post right knee arthroscopy surgery 10%; right wrist mass 10%; status post right shoulder arthroscopy with impingement 10%; degenerative joint disease, status post left knee arthroscopy and meniscectomy 10%; residuals left ankle fracture 10%; degenerative changes, thoracic spine 10%; tinnitus10%; status post ethmoidectomies and maxillary antrostomies with septoplasty, sinusitis 10%; hypertension 10%.  The overall combined evaluation of his disabilities is 90%.

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

He voluntarily retired from the Regular Army on 31 August 1998 in the grade of colonel with over 29 years of active federal service.

The applicant’s records do not include a copy of the physical examination he completed in connection with his retirement.  However, his retirement orders  195-0011, dated 14 July 1998, indicate that he was retired under statutes authorizing voluntary, nondisability retirement.

Army Regulation 600-8-24, Officer Transfers and Discharges, provides in pertinent part that medical examination prior to retirement is required. An officer who requests retirement and has a medical problem will be evaluated by the commander of the medical treatment facility to determine if referral to a Physical Evaluation Board (PEB) is necessary.  When a PEB is not necessary but additional medical care is, a nondisability retirement will be processed.  Medical treatment will continue up to and after (if necessary) the approved retirement date.  The retirement date will not be changed because of medical treatment.

Army Regulation 40-501, Standards of Medical Fitness, as amended states that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, 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.

Title 38, United States Code, sections 310 and 331, permits the Department of Veterans Affairs (DVA) to award compensation for a medical condition, which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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 DVA benefits based on 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.  The applicant has provided no evidence and the available records contain no evidence to show that at the time of his separation he was unable to perform his duties because of physical disability. The applicant's continued performance of duty raised a presumption of fitness, which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

2.  An award of a DVA rating does not establish entitlement to medical retirement or separation.  The DVA is not required to find unfitness for duty.  Operating under its own policies and regulations, the DVA may awards ratings because a medical condition is related to service.  Furthermore, the DVA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired.

3.  The available evidence indicates that the applicant was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary.  Absent such evidence, there is no basis for medical retirement or separation.

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

__rvo ___  ___ewl __  ____jpi __  DENY APPLICATION

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

INDEX

CASE ID	AR1999029712	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001207	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  108.00		
2.		
3.		
4.		
5.		
6.