MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 September 2000                  
	DOCKET NUMBER:   AR2000044419

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. Donald P. Hupman		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 her earlier appeal to correct her records by changing her separation with disability severance pay to physical disability retirement.  Additionally she requests that she be awarded the Meritorious Service Medal (MSM).

APPLICANT STATES:  That she should have been rated for an ankle injury.  She contends, in effect, that the Army should have rated her right ankle condition because the Department of Veterans Affairs (VA) has rated it.  She relates that she was recommended for the MSM during her last tour of duty.  To substantiate her case, she submits copies of a recent VA rating decision and a copy of an undated DA Form 638 (Recommendation for Award). 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's previous consideration of the case on 
29 April 1992 (COPY ATTACHED).

The MOC of the Board’s previous consideration of the case notes that the applicant mentioned only buttocks pain and asthma attacks at her physical evaluation board (PEB). 

The 14 June 2000 VA rating decision provided that, effective 28 May 1997, the applicant’s chronic right ankle sprain was rated as service-connected and 10 percent disabling.

The undated DA Form 638 recommended that the applicant be awarded the MSM for the period 6 May 1986 to 30 July 1987.  The form stated a desired presentation date of September 1987.  It was directed to the commander of the medical activity at Fort Belvoir, Virginia and was signed by the chief of the mental health service.  The only copy of the recommendation in the applicant’s records is associated with a covering memorandum directed to the chief of the mental health service and is signed by a major.  These two documents are, in turn, associated with a 29 January 1988 appeal for assistance to the office of a deputy assistant secretary.  The same major was supporting the applicant’s efforts to be found fit for duty and retained.  There is no indication in the available records that the DA Form 638 was ever submitted into the chain of command.

Army Regulation 600-8-22 provides, in pertinent part, that formal recommendations, approval through the chain of command, and announcement in orders are required for all personal decorations.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  There are regulatory provisions for lost recommendations but not for late recommendations or reconsideration.

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.

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.  Although a recommendation was prepared for the MSM there is no available evidence that it was ever submitted into the chain of command.  The possibility that it was submitted into the chain of command and never acted upon is only one of several equally possible scenarios.  The Board concludes that the award of the MSM is not warranted in this case. 
 
2.  The VA did not rate the applicant’s ankle problem until 2000.  Furthermore, she did not even mention that condition in her March 1997 PEB.

3. The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

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

__RVO__  ___EMW   __DPH __  DENY APPLICATION

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

INDEX

CASE ID	AR2000044419	
SUFFIX		
RECON		
DATE BOARDED	20000928	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.	107.00	
3.		
4.		
5.		
6.