MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 October 2000                   
	DOCKET NUMBER:   AR2000041640

	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. John D. Miller		Chairperson	
	Ms. Carol Jo Suiter		Member	
	Mr. John E. Denning		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 he received a medical retirement.

APPLICANT STATES:  That he was injured in a motor vehicle accident while on active duty in 1991.  He was treated for pain and stiffness at the time.  He was led to believe that medical retirement was not a possibility because his injuries were not serious enough.  An Army doctor told him he would “never pass a medical review board.”  He believes the doctor acted improperly by substituting his sole judgment for that which should have been done by a medical review board.  He accepted the doctor’s judgment because he thought his injuries would heal in time.  However, after his release from duty, the pain and stiffness got progressively worse.  The Department of Veterans Affairs (VA) has rated him as 40 percent disabled from traumatic arthritis and back strain involving disc damage.

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

After having had prior enlisted service, he was commissioned a second lieutenant in the Army National Guard on 13 May 1983.  He transferred to the    U. S. Army Reserve (USAR) on 19 December 1989.

On 20 July 1991, the applicant’s unit was ordered to annual training with duty station Germany.  On 24 July 1991, he was injured when the military bus on which he was riding was struck by another vehicle.  He was treated for pain in his elbow, shoulder, neck and back.  A Line of Duty investigation determined that the injury had been incurred in the line of duty.  On 8 August 1991, his tour of duty was terminated.  

The applicant’s Officer Evaluation Report (OER) for the period 9 November 1990 through 18 August 1991 shows that he was on a temporary profile from July 1991 but he was fully capable of performing assigned duties.  

On 23 April 1992, the applicant was treated for pain in the neck, shoulder, and back.  No particular atrophy in the neck and shoulder was found.  X-rays of the spine, pelvis, knee, and elbow were normal.  No focal or mechanical findings for the pain were found.  The applicant was found to be in chronic pain with an unknown etiology.

A medical consultation sheet dated 28 April 1992 shows that the applicant was evaluated by Neurology for chronic pain in the neck, shoulder, chest, lower back, groin, and knee.  No neurologic deficits were found.

A medical consultation sheet dated 20 May 1992 shows that the applicant was evaluated by Physical Medicine and Rehabilitation for pain.  The Reason for Request block notes that he had been in a motor vehicle accident in July 1991 and again 3 May (1992).  

The applicant’s OER for the period 19 August 1991 through 18 August 1992 shows that he was unable to maintain an appropriate level of physical fitness due to a reported back injury and that his performance under physical and mental stress was also affected by the back injury.

Orders dated 24 August 1992 reassigned the applicant to the inactive Reserve effective 1 August 1992.

A document from the Neurological Diagnostic Clinic dated 8 September 1992 shows that the applicant received an MRI of the lumbar spine.  The MRI indicated a normal appearance of the osseous neural arch.  The soft tissues adjacent to the lumbar spine were normal.  There was no evidence of disc herniation.  The conclusion was that the applicant had mild bulging discs of L1-L2 and L4-L5 without evidence of disc herniation and no spinal stenosis.

On 8 July 1994, the applicant was honorably discharged from the USAR in the rank of captain.  

A document from the Parkside X-Ray and Imaging Center dated 19 September 1994 indicated that the lumbar spine was normal.  Examination of the cervical spine indicated that there was mild posterior spurring C5-6 level with mild encroachment to the neuroforamen.

A document from the VA dated 12 April 1999 shows that the applicant was awarded a 40 percent disability rating (traumatic arthritis 20 percent and back strain 20 percent).

A document from the Betras Chiropractic Center dated 22 September 2000 indicated that several abnormalities of the applicant’s spine were found.

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 purposes of his employment on active duty.  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.  In pertinent part, it outlines the rules for processing through the disability system soldiers of the Reserve component who are on active duty for a period of less than 30 days or on inactive duty training.  It states that when a commander or other proper authority believes that a soldier not on extended active duty is unable to perform the duties of his or her office, grade, or rank because of physical disability, the commander will refer the soldier for medical evaluation. 

Army Regulation 40-501 governs medical fitness standards for retention and separation.  In pertinent part, it states that normally Reservists who do not meet the fitness standards will be transferred to the Retired Reserve, if eligible and if they apply for it, or discharged.

The mission of the Veterans Benefits Administration is to provide benefits and services to veterans and their families in a responsive, timely and compassionate manner in recognition of their service to the nation.  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. 

3.  The Board acknowledges that the applicant was on active duty when he was injured in 1991.  However, as shown by his OER for the period ending 18 August 1991, that injury did not render him unable to perform his duties because of physical disability.  Therefore, it was proper that he was not referred for medical evaluation. 
4.  Although the applicant’s OER for the period ending 18 August 1992 showed that he was unable to perform his duties because of a physical disability, he was no longer on active duty at that time.  Had he not been voluntarily released from an active status at that time, he could have been discharged as being medically unfit.  

5.  The Board concludes that it would not be appropriate to show that the applicant was medically retired.

6.  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

__jdm___  __cjs___  __jed___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041640	
SUFFIX		
RECON		
DATE BOARDED	20001012	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.