MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            06 NOVEMBER 2003                  
	DOCKET NUMBER:   AR2003088161

	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. Stanley Kelley		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Mae M. Bullock		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:  Disability retirement.

APPLICANT STATES:  The applicant makes no statement but attached an undated "memo" from the Disabled American Veterans organization which notes that "on the basis that the Veterans Administration has awarded you a service connected disability rating of 30%, or more, you may be eligible for disability retirement from military service."  He submits no evidence in support of his request.

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

In 1971 the Army Board for Correction of Military Records denied the applicant's petition to have his records corrected to show that he was retired by reason of physical disability.  The Board's proceedings in that 1971 case were not in records available to the Board.  In the absence of the original Board proceedings, this Board has accepted the current application and elected to do a "De Novo" review in order to provide the applicant with a clear understanding why his discharge has not been changed.

The applicant was a member of the United States Army Reserve between October 1949 and August 1950.  On 8 August 1950 he enlisted in the Regular Army and remained on active duty via a series of reenlistment and extension actions until he was honorably discharged on 29 October 1968.

The applicant's separation physical examination, conducted on 29 October 1968, found the applicant medically qualified for separation.  The evaluating physician did note that the applicant had a history of pneumonia and suffered from bilateral deafness.  

A December 1967 document contained in his file indicates that he was reclassified out of his infantry specialty into an administrative specialty because of an "H-3" physical profile for bilateral deafness.  The profile precluded assignment involving habitual or frequent exposure to loud noises or firing of weapons.

His records indicate that at some point after the applicant's 1968 discharge from active duty, the Department of Veterans Affairs (VA) granted the applicant a combined disability rating of 30 percent.  The rating included a 10 percent rating for residuals of a shell fragment wound, 10 percent for chronic bronchitis and asthma, 10 percent for perforated right eardrum with active otitis media, and a 10 percent rating for anxiety reaction with history of amnesia.

The memo from the Disable American Veterans organization, submitted in support of the applicant's current application, indicates that if he wished "to apply for a correction of your discharge" he was advised to complete a Department of Defense Form 149 and "return it to our office together with a copy of your separation notice…[and] we will then present it to the proper branch of service in Washington, D.C. for consideration."  The applicant's original 1971 application was submitted via that organization.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides 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, rank or rating.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty, despite an impairment, is evidence of physical fitness.

Title 38, United States Code, sections 1110 and 1131, 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's separation physical noted several ailments his continued performance of duty until his separation from active duty in October 1968 was an indication that the applicant was fit for military duties.  

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

__SK ___  __RJW __  __MMB__  DENY APPLICATION

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

INDEX

CASE ID	AR2003088161	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031106	
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.