MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 October 2001                   
	DOCKET NUMBER:   AR2001057445

	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:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Harry B. Oberg		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 be changed to a medical discharge.

APPLICANT STATES:  That the VA has given him a combined disability rating of 60 percent.  Therefore, he believes he should have received a medical discharge.

COUNSEL CONTENDS:  Counsel makes no contention.

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

After having had prior service, he re-entered active duty as a commissioned officer in September 1990.  By letter dated 31 May 2000, he was notified that he was not selected for promotion and that he would be released from active duty not later than 1 December 2000.

The applicant apparently received a permanent physical profile for a knee condition on an unknown date.  Around June 1999, he was evaluated by a Military Occupational Specialty (MOS) Medical Retention Board-directed Medical Evaluation Board (MEB).  The MEB diagnosed his condition as mild left knee pain, status post 4-ACL reconstruction with no functional instability of his knee.  It noted that he was able to perform all duties of his MOS as an Operating Room Nurse both in garrison and field environments.  He had difficulty with running but was able to perform pushups and situps without limitation.  He was referred to a Physical Evaluation Board (PEB) for adjudication.  The results of the PEB are not available.  Presumably, he was found fit for duty.

The applicant’s annual officer evaluation report for the period 9 June 1999 through 8 June 2000 shows that his rater rated his performance and potential for promotion as “outstanding performance, must promote.”  His senior rater rated his promotion potential as “best qualified.”  Comments were all highly laudatory and included “___ performed his duties as a Clinical Head Nurse in an outstanding manner” and “___is leaving active duty service with an excellent record of competent, confident, and compassionate nursing care.”

The applicant received an Army Commendation Medal for the period                    5 September 1997 to 19 July 2000.  The citation read in part “…___’s commitment to quality patient care was reflected in his outstanding clinical skills …”

On 1 November 2000, the applicant was released from active duty.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, or rank.  It states that a lack of special skills (such as the ability to complete the Army Physical Fitness Test) does not, in itself, establish eligibility for disability separation or retirement.  Although the ability of a soldier to reasonably perform his duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion will not serve as the sole basis for a finding of unfitness.  It 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.  

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. 

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 on the part of the Army.  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 determined to be fit for military duty yet receive a disability rating by the VA. 

3.  In addition, the evidence of record shows that the applicant was not physically unfit.  His last officer evaluation report and his Army Commendation Medal citation show that he was highly capable of performing his military duties up until his separation.

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

__cla___  __aao___  __hbo___  DENY APPLICATION

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

INDEX

CASE ID	AR2001057445	
SUFFIX		
RECON		
DATE BOARDED	20011030	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.