MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 September 2000                   
	DOCKET NUMBER:   AR2000044238

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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:  In effect, that his honorable discharge be changed to a medical retirement.

APPLICANT STATES:  That he should have been retired from the Army on a medical retirement instead of being forced to sign for a regular discharge under the threat of a court-martial for disobeying a direct order to sign.  The VA has awarded him service connection and 100 percent disability compensation for his brain embolism, epilepsy and a related memory condition.  He provides his Report of Transfer or Discharge, DD Form 214 and a VA rating decision as supporting evidence.

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

He enlisted in the Army on 13 April 1953.  He was convicted by a special court-martial in 1953 for being absent without leave and reduced from Private, E-2 to Private E-1.  However, his Service Record, DA Form 24, shows that he was steadily promoted in the ranks after that court-martial and was promoted to the temporary rank of Staff Sergeant, E-6 on 17 August 1962.  He completed his     1-year college equivalency in 1963.  He was promoted to the permanent rank of Staff Sergeant, E-6 on 8 May 1964.  His DA Form 24 shows he had all “excellent” conduct and efficiency ratings (where not “unknown”) up until he was honorably discharged on 27 November 1964 upon his expiration term of service.  

In 1998, the VA evaluated his embolism of brain vessels and seizure activity with amnesiac disorder, which were currently rated at 10 percent disabling, and increased the rating to 100 percent disabling effective 17 January 1992.

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. 

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.  The evidence of record shows that the applicant was fit for duty at the time of his separation.  He had received steady promotions, he had completed his 1-year college equivalency within a year of his separation, and he received “excellent” conduct and efficiency ratings through the date of his separation.  

3.  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

__jhl___  __clg___  __ena___  DENY APPLICATION

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

INDEX

CASE ID	AR2000044238	
SUFFIX		
RECON		
DATE BOARDED	20000921	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.