PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  8 February 2001 
	DOCKET NUMBER:  AR2000044780

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Donald P. Hupman		Member	
	Mr. George D. Paxson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be promoted to lieutenant colonel (LTC) and returned to active duty or retired 70 percent disabled.

3.  The applicant states that the FY98 Chaplain LTC Promotion Selection Board should have considered him.  He provides a comprehensive request consisting of various military documents.

4.  After completing 4 years, 3 months and 16 days of Naval enlisted service, the applicant’s military records show that he entered the Army on 30 September 1981, as a Chaplain.  He was promoted to pay grade 0-4 effective 1 August 1991.

5.  On 23 October 1996, he requested retirement with a separation date of        31 October 1997.

6.  The applicant subsequently requested and his command approved the withdrawal of his retirement for the purpose of having his records seen by the FY98 Chaplain LTC Promotion Selection Board.

7.  On 30 January 1998, the FY98 Chaplain LTC Promotion Selection Board adjourned, without considering the applicant.

8.  On 22 February 1998, he requested retirement with a separation date of      30 June 1998. 

9.  During the period 16 may 1991 to 1 July 1998, the applicant’s DA Form’s 67-8 (US Army Officer Evaluation Report) indicate his physical fitness as 1 and that he passed the required Army physical fitness tests (APFT).

10.  On 30 June 1998, he was honorably separated for sufficient service for retirement and placed on the retired list on 1 July 1998.  His separation document indicates he had 21 years and 17 days of creditable service.

11.  On 30 June 2000, a Department of Veterans Affairs (VA) letter, dated         30 June 2000, indicates the applicant is receiving service-connected compensation, rated at 70 percent.

12.  On 12 October 2000, the Chief, Promotion Branch, Total Army Personnel Command (PERSCOM) opined that the applicant was inadvertently omitted from consideration by the FY98 Chaplain LTC Promotion Selection Board.  It was recommended that he be considered for promotion under the standards of that board.  If the applicant is selected, his promotion eligibility date for LTC would be 1 July 1998.

13.  On 24 October 2000, the advisory opinion was forwarded to the applicant for his acknowledgement/rebuttal.

14.  On 29 November 2000, he concurred with the PERSCOM opinion.

15.  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 the said medical condition reduces or impairs the social or industrial adaptability of the individuals 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.

16.  Army Regulation 635-40, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness whch can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

CONCLUSIONS:

1.  The applicant’s continued performance of duty, physical fitness status and APFT’s raises a presumption of fitness, which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

2.  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.  The applicant has not provided any evidence to support his medical condition for retirement.

3.  The evidence of record shows he should have been considered to promotion by the FY98 Chaplain LTC Promotion Selection Board and should be considered under those standards.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by submitting the records of the individual concerned to a duly constituted special selection board using the FY98 Chaplain LTC Promotion Selection Board criteria.

2.  That, if he is selected for promotion, he be promoted and assigned an appropriate date of rank.

3.  That, if he is promoted, his retired rank be adjusted accordingly.

4.  That, if he is not selected for promotion, he be so notified.

5.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__jl___  ___dh___  ___gp_____ GRANT AS STATED IN RECOMMENDATION

________  ________  ________ GRANT FORMAL HEARING

________  ________  ________ DENY APPLICATION

		___Joann Langston___
		        CHAIRPERSON

INDEX

CASE ID	AR2000044780	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010208	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.131	Prom to LTC	
2.		
3.		
4.		
5.		
6.