MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:          12 April 2001                  
	DOCKET NUMBER:  AR2000049013

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Mr. Donald P. Hupman		Member	
	Mr. Richard T. Dunbar		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:  That his separation from active duty be corrected to a medical retirement.

APPLICANT STATES:  That a Veterans Service Officer told him that he should have been medically retired based on his Department of Veterans Affairs (DVA) disability rating.

In support of his application he submits his DVA rating decision.  In that decision he was awarded a 30 percent disability rating for residual fragment wound, muscle group VI, moderately severe, with history of transient neuropathy; and he was awarded a 10 percent disability rating for residual fragment wounds, muscle group XXI, moderately severe, chest with right fibrothorax and chronic bronchitis.

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

He enlisted in the Regular Army on 16 April 1968, was awarded the military occupational specialty of medical specialist, and was promoted to pay grade E-5.  He served in Vietnam from 29 September 1968 through 11 April 1969.

On 19 May 1969 the applicant was awarded the Silver Star for treating his wounded comrades in the midst of a heavy mortar attack.  While he was treating a wounded comrade, he was wounded by an enemy mortar round.  Despite his wounds and inability to move, he continued to treat his comrade until help arrived.

As a result of that wound the applicant’s duty status changed to patient and he remained in a patient status from 31 March 1969 through 7 July 1969.  He was then returned to duty as a medical specialist.

The applicant requested an early release from active duty to attend school.  At that time he was given a separation physical examination.  In that examination he stated “Besides some trouble with pain and stiffness in injury sites, I feel fine.”  The physician providing the examination noted all the applicant’s wounds and the residuals of those wounds, but determined that he was medically qualified for separation.

As such, the applicant was honorably released from active duty on 22 January 1971 to attend school.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.    In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career. 

Title 38 United States Code permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, 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 DVA benefits based on an evaluation by that agency.

The Judge Advocate General (TJAG) of the Army, in a similar case, has advised the Board that a disability rating from the DVA has little to no weight in determining eligibility for disability retirement by the Army in the eyes of the court (Kirwin v. United States, 23 Cl.Ct 497(1991).  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant had been determined medically qualified for separation prior to his separation.  In that examination his wounds and the residuals of those wounds were taken into consideration.  Without a finding of medical disqualification, there was no basis to refer the applicant to a PEB.

2.  However, even if the applicant had been referred to a PEB, all indications are that he would have been determined physically fit based on the fact that he was returned to duty after he was wounded and had performed his duties for 1 ½ years prior to his release from active duty.

3.  The fact that the DVA has awarded the applicant a disability rating is only indicative that the system is working as it was designed to do.  Since the applicant was physically fit to perform his military duties, he was not eligible for a medical retirement from the Army.  However, the DVA has properly compensated him for the industrial and social impairments he suffers from as a result of his wounds.

4.  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

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2000049013	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
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.	108.05	
2.		
3.		
4.		
5.		
6.