MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            29 March 2001     
	DOCKET NUMBER:   AR2000048285

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Lester Echols		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, disability retirement or separation.

APPLICANT STATES:  That she was released from active duty as a result of hardship due to her medical condition.  She states that within 6 months of her separation the VA granted her a 50 percent service connected disability rating.  She submits no evidence in support of her request.

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

She entered active duty on 14 February 1986 and successfully completed basic and advanced individual training prior to being assigned to Fort Ord, California as a finance specialist in June 1986.  She was promoted to pay grade E-3 in February 1987 and to E-4 in June 1987.

According to a self-authored statement submitted as part of her December 1987 request for a hardship discharge the applicant indicated that she experienced severe abdominal pain in August 1986 and ultimately underwent surgery to relieve the pain in January 1987.  She notes that the pain continued and in August 1987 she "had a total hysterectomy."  She stated that upon returning to duty she pulled a muscle in her abdomen where her incision was after carrying her "TA-50 in for inspection."  The applicant indicated she was told by her doctor not to carry anything over ten pounds.

The applicant continued in her statement to describe the stress she had been under over the past 14 months including a divorce, receiving full custody of her son, and pending reassignment to Germany.  She stated that her "greatest concern now is when the pain returns what will I do to provide care and supervision" for her son, particularly in an overseas environment.  She indicated that her fear that the pain may return and her concerns for her son were the basis for her request for a hardship discharge.  

In recommending approval of her request her unit commander indicated the applicant was "not under charges, confinement, pending separation action" under any other provision of Army Regulation 635-200 and was not "being processed for separation or retirement for physical disability."

Her December 1987 DA Form 2A (automated personnel qualification record) indicated the applicant's profile was 1-1-1-1-1-1 and her physical category was A.

The applicant's request was approved and on 17 February 1988 she was honorably discharged from active duty under the provisions of Army Regulation 635-200, paragraph 6-3b(2).

Army Regulation 635-200, paragraph 6-3b(2) provides for the administrative separation of soldiers who are experiencing hardships.  It notes that hardship exists when separation from the service will materially affect the care or support of the family by alleviating undue and genuine hardship.  It states that soldiers who are sole parents, and whose children under 18 years of age reside within the household, may apply for separation under hardship.

Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty. 

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

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.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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.  There is no evidence that her medical problems prevented her successful completion of her military duties.  Rather it was concern for the welfare of her child which served as the basis for her voluntary request for separation as a result of hardship.

2.  Although the applicant may have experienced some medical problems her continued performance of duty until her separation from active duty in February 1988 raised a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness of injury concomitant with her separation.

3.  The evidence of record indicates she did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

4.  A rating action by the VA does not necessarily demonstrate any error or injustice by the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its reason or authority for separation.

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

___jns__  ___cjp__  ___le___  DENY APPLICATION

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

INDEX

CASE ID	AR2000048285	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010329	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.