MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 August 2000                   
	DOCKET NUMBER:   AR2000041999

	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. Thomas D. Howard, Jr.		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Gail J. Wire		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 discharge.

APPLICANT STATES:  That he injured his back in 1975.  He was under a light duty profile from 1975 until his separation.  His condition deteriorated until he needed surgery a year after he was separated.  To date, he has had five more back surgeries.  He provides six reports of medical examination as supporting evidence– a one-page report from the VA Hospital, Memphis, TN dated               8 February 1978;  a two-page report from the Philadelphia VA Medical Center dated 26 March 1996; a two-page report from the VA Medical Center, Memphis, TN dated 19 July 1989; a two-page report from the Philadelphia VA Medical Center dated 22 March 1999; a one-page report (noted as page 1 of 7) from an unknown agency dated 13 March 2000; and a four-page report from Larchmont Imaging Associates dated 15 March 2000.

COUNSEL CONTENDS:  That the Board should give careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  

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

He enlisted in the Regular Army on 16 January 1974.  He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 95C (Corrections Specialist).  

On 25 July 1975, MOS 95C was withdrawn and the applicant was awarded MOS 94D (Baker).  His Personnel Qualification Record, DA Form 2-1, shows he was awarded primary MOS 94B (Food Service Specialist) on 1 September 1976.  No orders are available and this may have been an MOS conversion rather than a reclassification.  

On 15 September 1975, the applicant was given a permanent physical profile for chronic low back pain and assignment limitations of no marching, no running, no heavy lifting.  It was recommended that his MOS be changed to one requiring no prolonged standing.

On 23 January 1976, the applicant was reassigned for on-the-job training as a 71B (Clerk Typist).

The applicant’s Enlisted Evaluation Report (EER) for the period ending April 1976 shows his duty MOS as 71B, unit clerk typist.  In the category of “physically fit, as required, for MOS/grade during combat,” the applicant was rated as “superior to most” by his rater and as “ranks with very best by his indorser.”

The applicant’s EER for the period ending July 1976 shows his duty MOS as 55B, ammunition storage specialist.  In the category of “physically fit, as required, for MOS/grade during combat,” the applicant was rated as “exceeds duty requirements” by his rater and indorser.

On 27 December 1976, the applicant completed a separation physical examination.  The only conditions noted on his Report of Medical Examination, SF Form 88, was a burn scar on his upper right arm and a hearing loss.  This form indicated no physical profile except a “2” under the hearing category.  He was found qualified for separation.  On his Report of Medical History, SF Form 93, the applicant had noted that he had chronic low back pain that started in basic training, that he was taking pain medications and that he was on light duty.

On 14 January 1977, the applicant was released from active duty upon completing his normal term of service.  

All evidence provided by the applicant verifies his back condition.  The                8 February 1978 document indicated surgery had shown herniated nucleus pulposus at L5 on the right.

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.  

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. 

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.  There is evidence of record to show that the applicant had chronic low back pain while in the Army but the evidence also shows that he was fit to perform his duties.  Therefore, he was not qualified for medical processing.

3.  The Board acknowledges that the evidence provided by the applicant shows that his back condition has worsened over the years.  However, even if he were to show that the VA has given him a disability rating such a rating would 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. 

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

__tdh___  __aao___  __gjw___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041999	
SUFFIX		
RECON		
DATE BOARDED	20000815	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.