MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 July 2001                   
	DOCKET NUMBER:   AR2001058306

	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. Fred N. Eichorn		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Donald P. Hupman, Jr.		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 active duty retirement be changed to a medical retirement.

APPLICANT STATES:  That the VA has given him a combined rated of 90 percent for conditions that existed prior to his discharge.  The VA rating decision clearly states that these medical conditions existed at the time of the physical examination that was conducted at his retirement.  He feels it was an injustice that the officer who conducted the retirement examination did not tell him about these conditions so he could not demand a hearing for a physical disability separation.

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

He enlisted in the Regular Army on 31 July 1974.  

On 18 December 1986, the applicant was given a permanent L2 profile for status post fracture of the left femur, left tibia, and left fibula, degenerative arthritis of the left ankle, and left leg shortening due to trauma.  He was given limitations of no running over one mile at own pace and distance and he could bicycle or walk for alternate Army Physical Readiness Test standards and fitness. 

The applicant requested retirement on 7 March 1995.  His request was approved on 12 April 1995.  His Personnel Qualification Record, DA Form 2A, dated        19 April 1995 showed that he still had only a permanent L2 profile.  He retired on 1 August 1995 after completing 21 years of creditable active.

On 3 October 1997, the VA awarded the applicant compensation for hypertensive heart disease with essential arterial hypertension (60 percent); residuals of a fracture of the left femur with shortening of the leg and arthritis of the left knee (30 percent); residuals of a fracture of the left lower leg with arthritis of the ankle (10 percent); arthritis of the right and left hip (10 percent each); and reactively triggered depression (50 percent).  He was awarded increased compensation for arthritis lumbosacral spine with intervertebral disc syndrome (40 percent) and post-operative cervical fusion with radiculopathy of the right   arm (40 percent).  He was given a combined evaluation of 90 percent as of          1 September 1995 and 100 percent as of 1 April 1997.

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 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 a soldier is fit. Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

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 Board notes that the applicant never received more than a permanent L2 profile and relatively minor duty limitations.  There is no indication that he was ever unable to perform his military duties.  Since there is no evidence to show that he was medically unfit to perform his military duties, the Presumption of Fitness rule has not been overcome.

3.  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 considered insufficient to render him medically unfit for duty and yet be rated by the VA.

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

__fne___  __slp___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2001058306	
SUFFIX		
RECON		
DATE BOARDED	20010717	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.