MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 February 2001                   
	DOCKET NUMBER:   AR2001051839

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Roger W. Able		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 discharge with severance pay be changed to a medical retirement.

APPLICANT STATES:  That the VA has rated his disabilities at 40 percent.  He provides his VA rating decisions dated 5 October 1989, 4 November 1991, and 22 January 1992 as supporting evidence.

COUNSEL CONTENDS:  Counsel makes no additional contention.

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

After having had prior service in the Army National Guard, he enlisted in the Regular Army on 28 September 1973.  He was promoted to Sergeant First Class, E-7 on 5 December 1984 and held military occupational specialty 63H (Track Vehicle Repairer).

The applicant’s Enlisted Evaluation Reports for the periods ending April 1985, April 1986, January 1987, July 1987, and December 1987 all contain highly commendable comments and show, in effect, that he completed all assigned tasks successfully.

On an unknown date, but apparently around 1988, the applicant was given a P3 profile for severe allergies, asthma, and laryngospasm.  He was given assignment limitations of physical training at his own pace and tolerance, no field duty, and no use of protective mask.  

In August 1988, the applicant was referred to a medical evaluation board (MEB) with a chief complaint of asthma and allergies and his inability to perform his military duties in the field secondary to his allergies, which had not responded to treatment.  Other conditions noted were patellofemoral pain syndrome of the right knee, compression neuropathy in the right upper extremity, and eyesight problems.  He was diagnosed with asthma; degenerative joint disease, right knee; compression neuropathy of the neck; and eye problems and referred to a physical evaluation board (PEB).  On 5 August 1988, the applicant agreed with the findings and recommendation.

On 10 August 1988, an informal PEB found the applicant unfit for military service due to asthma at a 10 percent disability rating.  The other diagnoses were found to be not unfitting.  It was recommended he be discharged with severance pay.  On 16 August 1988, the applicant concurred in the findings and recommendation and waived a formal hearing.

On 23 September 1988, the applicant was discharged, with severance pay, for disability.

On 5 October 1989, the VA awarded the applicant a 10 percent disability rating for asthma effective 24 September 1988.  On 4 November 1991, the VA awarded him a 10 percent disability rating for allergic sinusitis, rhinitis, effective 6 February 1991 for a combined rating of 20 percent.  On 22 January 1992, the VA awarded the applicant a 20 percent disability rating for cervical spondylosis with right upper extremity compression symptoms and a 10 percent disability rating for post-traumatic changes right knee, both effective 24 September 1988 for a combined rating of 40 percent.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. 

Title 38, U. S. 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.  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.

2.  The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved (i. e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level.

3.  The Board notes that no physical disabilities prevented the applicant from performing his duties in a highly satisfactory manner, at least while in garrison.  It was only his asthma that prevented him from performing his duties in a field environment.  He was properly found unfit for duty only for his asthmatic condition and his asthma was therefore the only ratable condition.

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

__jns___  __mhm___  __rwa___  DENY APPLICATION

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

INDEX

CASE ID	AR2001051839	
SUFFIX		
RECON		
DATE BOARDED	20010227	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.