MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 August 2001
	DOCKET NUMBER:   AR2001056614

	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. P. A. Castle		Analyst	

The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Thomas Lanyi		Member	
	Ms. Paula Mokulis		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 the Board correct his records to reflect that he was separated from the service by reason of physical disability.

APPLICANT STATES:  In effect, that he was in an accident in September 1974 when a forklift driver struck his left foot, rolled up on his leg and stopped on his abdomen.  The driver then put the forklift in reverse and rolled off his body.  He believes that the physical and psychological problems he has today are as a result of the accident when he was in the Army.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case   (AC76-03091) on 12 May 1976 and case (AC76-03091A) on 1 July 1981.

The Board’s review of the applicant’s previous requests shows that he twice asked for recharacterization of his discharge.  In support of this request the applicant submits a copy of a medical profile/evaluation form dated 23 December 1974 that describes his profile as a result of permanent damage to pelvic area due to forklift accident in September 1974.  The following are the profile restrictions:

	a.  No crawling, stooping, running, jumping, no prolonged standing and no marching in excess of 5 minutes;

	b.  No strenuous physical activity;

	c.  No assignment requiring handling of materials in excess of               25 pounds;

	d.  Job limitations:  fit for kitchen police, fit for janitorial work and lobby clean up, fit for yard clean up work, police calls, and work inside compound.

Army Regulation 635-40, paragraph 3-2b(1), provides 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.

Army Regulation 635-40, paragraph 3-2b(2), provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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.

Army Regulation 635-40, paragraph 1-2, in effect at the time, provided that no enlisted member may be referred for physical disability processing when action has been or will be taken to separate him or her for unfitness, except when the officer exercising general court-martial jurisdiction determines that the disability was the cause or substantial contributing cause of the misconduct, or that circumstances warrant physical disability processing in lieu of administrative processing.  A copy of the signed decision of the general court-martial authority directing physical disability processing will be included with the records.

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.  The applicant was being processed for separation under conditions that could have led to discharge under other than honorable conditions and was not eligible for physical disability processing. 

2.  The law and regulations make it clear that to be separated for physical disability a soldier must be physically unable to perform duty and that the presence of a medical condition that was acquired or aggravated while entitled to basic pay does not necessarily require an medical evaluation board or qualify an individual for physical disability.

3.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

4. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

___pm __  ___jhk___  ___tl____  DENY APPLICATION

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

INDEX

CASE ID	AR2001056614	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/08/23	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.00	
2.		
3.		
4.		
5.		
6.