MEMORANDUM OF CONSIDERATION

IN THE CASE OF:       

BOARD DATE:           26 September 2000                  
DOCKET NUMBER:   AR2000043718

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Thomas F. Baxter		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: Reconsideration of his application to correct his records by granting him physical disability retirement.

APPLICANT STATES:  In effect, that he should not have been called to active duty on or about 28 December 1989 due to his medical condition.  He states that he sustained a second injury to his back and neck that aggravated his condition and has caused a worsening of the preexisting problems.  He also contends that he is suffering from conditions associated with Persian Gulf Syndrome.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 17 April 1996 (COPY ATTACHED).

The applicant submits a five page outline of his medical condition and contentions, a copy of a vision screening showing a diagnosis of keratoconjunctivitis.   He furnishes the Department of Veterans Affairs (VA) rating decision that granted a 40% disability evaluation for a low back condition and a VA medical opinion that the applicant is suffering from post traumatic stress disorder (PTSD).  He also provides a copy of his Social Security Administration award of disability benefits, and three letters from long time friends who attest to the deterioration of the applicant since his return from the Gulf War.  Additionally, he submits articles on Aspartame sensitivity, live blood conditions and Gulf War illnesses.

These documents were not previously available to the Board and constitute new evidence that requires Board review.

The applicant again submits copies of some of his service medical records.

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 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.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides 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.

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 fact that the VA has awarded the applicant a disability rating which is not in consonance with the Army's physically fit rating, but is within the policies of that agency, does not mean that either rating is erroneous.  The VA rating does not establish physical unfitness, nor the degree thereof, for Department of the Army purposes.  Each department is bound to operate within its own rules, regulations, and policies.

2.  The award of Social Security benefits does not show that the applicant meets the requirements for a finding of unfit for duty at the time of his release from service.

3.  The evidence submitted by the applicant shows that he is suffering from several serious conditions however it does not show that, at the time his was on active duty, he met the requirements for physical disability retirement. 

4.  The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

5.  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

__AAO__  ___MHM_  __TFB___  DENY APPLICATION

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

INDEX

CASE ID	AR200043718	
SUFFIX		
RECON	 	
DATE BOARDED	20000926 	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.01	
2.		
3.		
4.		
5.		
6.