MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 August 2000                   
	DOCKET NUMBER:   AR2000041095

	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:

	Mr. Mark D. Manning		Chairperson	
	Mr. John Saputo		Member	
	Ms. Karen A. Heinz		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 be changed to a medical retirement.

APPLICANT STATES:  That he was critically wounded in action in September 1968.  He was hospitalized for almost 4 months.  He was told he would be medically retired but then in January 1969 he was transferred to Fort Hood for unknown reasons.  He was not able to perform any duties.  He was separated in November 1969.  In January 1970, the VA awarded him a 40 percent disability rating.  He believes he should have been retired for medical reasons.  He provides an extract of Title 10, U. S. Code, chapter 61, Retirement or Separation for Physical Disability, section 1201 as supporting evidence.

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

He was inducted into the Army on 21 November 1967.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

The applicant arrived in Vietnam on 16 May 1968.  He was wounded in action and hospitalized on 2 October 1968 at the 249th General Hospital.  He was transferred to the Naval Hospital, Chelsea MA on 17 October 1968.  

On 18 January 1969, the applicant was transferred to Fort Hood, TX and assigned to Company A, 2d Battalion, 46th Infantry, 1st Armored Division as an automatic rifleman.  

On 23 September 1969, the applicant completed a separation physical.  He was given a temporary profile for radial nerve deficit, the profile due to expire on      25 October 1969.  He was referred to Surgery for a post pneumohemothorax evaluation.  Surgery cleared him for separation.  He was referred to Orthopedics for radial nerve palsy and back pain.  Orthopedics cleared him for separation.  He was found to be qualified for separation.  

On 21 November 1969, the applicant was released from active duty and transferred to the U. S. Army Reserve (USAR) Control Group (Annual Training).  

The applicant’s Personnel Qualification Record, DA Form 20, shows that he received “excellent” conduct and efficiency ratings during his tour at Fort Hood.  

On an unknown date in 1970, the VA awarded the applicant a 40 percent disability rating.  In March 1971, the VA noted the applicant had residual changes in his left arm secondary to a radial nerve injury and had been adjudged            40 percent disabled.  On 31 August 1971, he was determined to be medically disqualified for retention in the USAR and was discharged from the USAR on    16 September 1971 due to physical disqualification.
The applicant has apparently since been awarded a 100 percent disability rating by the VA.

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 purpose of his employment on active duty.  This implements the law as outlined in Title 10, U. S. Code, section 1201.

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 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.  Consequently, due to the two concepts involved (i. e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual may have a  medical condition that does not render him unfit for duty but which may be rated by the VA as disabling. 

3.  The evidence of record shows that the applicant was not unfit for duty at the time he was released from active duty.  His DA Form 20 shows he received “excellent” conduct and efficiency ratings after he was released from the Naval Hospital.  He was cleared for separation by separate Surgery and Orthopedics evaluations and he was found to be qualified for separation.  He did not have a permanent physical profile.  The Board concludes that he did not meet the eligibility criteria for a physical disability retirement.

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

__mdm___  __js____  __kah___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041095	
SUFFIX		
RECON		
DATE BOARDED	20000810	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.