MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            29 March 2001   
	DOCKET NUMBER:   AR2001053368

	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.  

APPLICANT STATES:  He states that he met the qualifications for disability retirement at the time of his separation but was not afforded the opportunity to appear before a PEB (Physical Evaluation Board).  He notes he had less than 20 years of military service and was medically unfit to continue his military service due to “line of duty disabilities at the time of separation” which he states “were greater than 20%.”  In support of his request he submits a November 1999 VA document indicating he was receiving a combined service connected disability rating of 30 percent following his separation from active duty in 1997 which was subsequently increased to 40 percent in 1999.

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

He entered active duty on 3 August 1994 for a period of 3 years and 20 weeks.  He was promoted to pay grade E-4 on 3 October 1996.

Information contained on an informal line of duty investigation indicates that the applicant “suffered a crush[ed] right foot” on 15 February 1997 as a result of a motor vehicle accident between a tank and a “5.ton vehicle.”  The investigation notes that the turret of the tank was hit by the truck “causing the turret to spin out of control which resulted in the gunner [the applicant’s] leg to become caught and fractured.”

The applicant continued to serve on active duty until 19 December 1997 when he was released from active duty with an honorable characterization of service at the conclusion of his enlistment contract.  His reenlistment eligibility (RE) code was “1” indicating that he was fully qualified for reenlistment.

Subsequent to his separation he was awarded a combined 30 percent disability rating by VA effective 20 December 1997 which was increased to 40 percent in June 1999.

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. There is no evidence, and the applicant has not provided any, which confirms he was unable to perform his military duties at the time of separation and as such there is no basis for disability retirement.

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.  Although the applicant may have suffered an injury to his foot which was determined to have occurred in the line of duty his continued performance of duty until his separation from active duty in December 1997 raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

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

3.  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.

4.  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 that requirement.

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	AR2001053368	
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.