MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           5 April 2001                   
	DOCKET NUMBER:   AR2001051243

	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:

	Ms. June Hajjar		Chairperson	
	Mr. Harry B. Oberg		Member	
	Ms. Celia L. Adolphi		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 her discharge for the convenience of the Government with Special Separation Benefits (SSB), be corrected to a medical retirement.  It would appear that she is also requesting that her Department of Veterans Affairs (DVA) disability pension not be offset by her military separation pay.

APPLICANT STATES:  In 1990 a medical board determined that she was physically unfit, but when she requested that she be retained and returned to duty, the medical board honored her request.  However, now the DVA is recouping her separation pay which is creating a financial hardship for her.  It is implied that if she had received a medical retirement, she would not have this offset and would not have this financial difficulty.

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

She enlisted on 9 June 1978 with 2 years, 7 months and 24 days of prior active service.  She served as a food service specialist and through subsequent reenlistments was promoted to pay grade E-7.

On 30 May 1990 a Physical Evaluation Board (PEB) convened and determined that the applicant was physically fit to perform her duties.  As such, she was released to perform duty within the confines of her physical profile.  The applicant’s health records are not part of her military records.

In 1992 the applicant submitted a request to be separated with SSB payment.  Her request was approved and she was honorably released from active duty on 6 August 1992 with $58,810.59 as an SSB payment.

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 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 parameters 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. 

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.  Since the applicant was determined physically fit and returned to a duty status, there was no basis for medically retiring her.

2.  The Board notes that the applicant requested her separation herself and received a sizable SSB payment as a result of her approved request.  

3.  The actions taken by the DVA are not within the purview of this Board.  The applicant must petition that Department for redress on any issue she may have with her DVA disability pension.

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

____jh  __  ___hbo__  __cla ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001051243	
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	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	108.05	
2.		
3.		
4.		
5.		
6.