MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 December 2001
	DOCKET NUMBER:   AR2001061593

	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	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Jose A. Martinez		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 his records be corrected to show that he was medically retired from the Army.

APPLICANT STATES:  In, effect, that he received a disability rating of 40 percent 
from the Department of Veterans Affairs (VA).  He further states that he was not informed that upon separation from the Army he had the option of being medically retired.

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

He continuously served on active duty for 12 years, 3 months, and 1 day, from 
5 October 1972 until 5 December 1984, when he was honorably separated at the expiration of his term of service.  He served in military occupational specialty (MOS) 71L (Administrative Specialist) and he earned the following awards during his active duty tenure:  Army Commendation Medal; Good Conduct Medal (2nd Award); and Expert Infantryman Badge.  The record shows that the highest rank he held while on active duty was specialist five/E-5 (SP5/E-5).

In 1984, a Department of the Army, Qualitative Management Program (QMP) Board, after a comprehensive review of the applicant’s Official Military Personnel File (OMPF), determined that he should be barred from reenlistment.  The Board cited the applicant’s disciplinary history and annual enlisted evaluation reports as the basis for their decision.  There is no indication in the record that the applicant or anyone in his chain of command appealed this QMP bar from reenlistment.

There is a Medical Examination for Separation (Statement of Option) form on file, dated 13 November 1984.  This document confirms that the applicant, subsequent to counseling, elected not to undergo a separation medical examination and to instead have his medical records reviewed and evaluated by a physician who would determine if an examination should be accomplished.  The applicant’s records were reviewed by the appropriate medical authority, who noted no medical disqualifications.  The applicant was found medically fit for retention and as a result, he was medically cleared for separation. 

Army Regulation 40-501, paragraph 3-3b(1), as amended, states, in pertinent part, that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, or rating and the conditions must have been incurred while entitled to base pay.  

Army Regulation 635-40, paragraph 2-2b, as amended, states, in pertinent part, that when a member is being separated for a reason other than physical disability, their continued performance of duty creates a presumption of fitness.  This presumption can only be overcome by clear and convincing evidence that the soldier is unable to perform their duties 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.  

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’s medical records were not available for review by the Board and the applicant has provided no evidence to support his contention that he should have been medically retired.   

2.  The evidence of record confirms that the applicant declined a separation physical examination and that a review of his medical records by competent medical authority resulted in his being found medically fit for retention and cleared for separation.  In the absence of evidence to the contrary, the Board presumes regularity in the applicant’s medical separation and discharge processing.  Therefore, it finds insufficient evidence to support granting the requested relief. 

3.  The rating action by the VA does not necessarily demonstrate any error or justice on the part of the Army.  The VA, operating under its on policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not necessarily constitute an error or injustice on the part of the Army.

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

__INW __   _ _TL __  __JAM __  DENY APPLICATION

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

INDEX

CASE ID	ARAR2001061593	
SUFFIX		
RECON		
DATE BOARDED	2001/12/18	
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.	108.0000	
2.		
3.		
4.		
5.		
6.