MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            20 March 2001     
	DOCKET NUMBER:   AR2000048178

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. William D. Powers		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 the honorable discharge he received in 1981 for his active duty service and the honorable discharge he received in 1986 for his USAR service be changed to a medical discharge.

APPLICANT STATES:  That the honorable discharges given in 1981 and 1986 are improper because:  (1) he was exposed to the HIV virus in 1980 while on active duty; (2) he was diagnosed by the military in 1986 with the HIV virus; 
(3) he was wrongfully discharged without consideration of physical disability, evaluation, counseling and a final disposition; (4) he has been assigned a compensation rating of 30% by the VA; and (5) the rating boards failure to consider retroactive compensation and pension.  In support of his application, he submits a letter of explanation dated 21 September 2000; a letter of explanation dated 18 August 2000; VA documentation dated 26 July 2000; a letter, dated 
12 March 1986, from the Atlanta Military Entrance Processing Station; a copy of DD Form 4 (Enlistment or Reenlistment Agreement) dated 22 June 1978; an undated medical record; Orders 217-1 dated 21 November 1986; one page of his DA Form 2-1 (Personnel Qualification Record); a letter, dated 14 December 1999, from his physician; a copy of a Compensation and Pension Examination conducted on 11 January 2000; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 26 June 1981; an Honorable Discharge Certificate from the USAR dated 9 June 1984; and a letter, dated 17 December 2000.   

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

The applicant entered active duty on 27 June 1978 for a period of 3 years.  He served as an equipment records and parts specialist and was honorably released on 26 June 1981 and transferred to the USAR Control Group (Reinforcement).  

The applicant’s DA Form 2 (Personnel Qualification Record - Part 1) prepared on 
11 February 1981 shows his physical profile was 111121.  DA Form 1811 (Physical Data and Aptitude Test Scores Upon Release from Active Duty), dated 26 June 1981, shows the entry “Separation physical not required”.  

The applicant was honorably discharged from the USAR on 9 June 1984. 

After a break in service, the applicant enlisted in the USAR on 5 February 1986 for a period of 6 years.  

On 12 March 1986 the applicant was notified that he was disqualified for military service as a result of a positive blood test for the Human T-cell Lymphotropic Virus Type III.

DA Form 47-R (Request for Discharge), dated 4 November 1986, shows the unit commander recommended that the applicant be separated with a general discharge under the provisions of Army Regulation 135-178, paragraph 4-7, for failure to meet procurement medical fitness standards. 

On 21 November 1986 the applicant was honorably discharged from the USAR under the provisions of Army Regulation 135-178 for failure to meet medical fitness standards. 

There is no medical evidence in the available records which shows the applicant was exposed to the HIV virus in 1980 while on active duty.

Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  Paragraph 4-7 (Discharge of soldiers who did not meet the medical fitness standards) provides that commanders who are separation authorities are authorized to discharge soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on inactive active duty training.  A soldier’s period of service will be characterized as honorable unless an uncharacterized description of service is required or characterization of service as general (under honorable conditions) is warranted.

Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. 

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.  The Board considered the applicant’s contention that he was exposed to the HIV virus in 1980 while on active duty.  However, there is no medical evidence of record, and the applicant has provided no medical evidence, to support this contention.

2.  The applicant was on active duty from 27 June 1978 to 26 June 1981.  Service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  Prior to his separation, the applicant’s physical profile was 111121 and competent medical authority determined that a separation physical examination was not required.  Accordingly, the applicant was separated from active duty for completion of required service, not as a result of a medical condition.

3.  The applicant’s administrative separation in 1981 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons for separation are appropriate considering all of the facts of the case.

4.  The applicant’s contention that he was diagnosed by the military in 1986 with the HIV virus is valid.  Evidence of record shows that during the applicant’s entrance medical examination for the USAR in February 1986, a blood sample was taken and the sample tested positive for the Human T-cell Lymphotropic Virus Type III.  The applicant was notified of his disqualification for military service on 12 March 1986. 

5.  Accordingly, the applicant was properly discharged from the USAR for failure to meet medical fitness standards on 4 November 1986.        

6.  The Board considered the applicant’s contention that he was wrongfully discharged without consideration of physical disability, evaluation, counseling and a final disposition.  However, the applicant’s administrative separation from the USAR in 1986 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons for separation are appropriate considering all of the facts of the case.  Therefore, there is no basis for physical disability processing in this case.

7.  The Board noted the applicant’s contentions pertaining to his VA rating and the failure of the rating board to consider retroactive compensation and pension.  However, VA rating decisions are determinations made by authorities within the Department of Veterans Affairs and those decisions are not within the jurisdiction of the Army Board for Correction of Military Records. 

8.  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.

9.  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

FNE____  RJW____  WDP____  DENY APPLICATION

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

INDEX

CASE ID	AR2000048178	
SUFFIX		
RECON		
DATE BOARDED	20010320	
TYPE OF DISCHARGE	(HD)/(HD)	
DATE OF DISCHARGE	19810626/19861104	
DISCHARGE AUTHORITY	AR 635-200/AR 135-178	
DISCHARGE REASON	Completion of required service/Failure to meet medical fitness standards	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.0000	
2.		
3.		
4.		
5.		
6.