MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           6 April 2000                  
	DOCKET NUMBER:   AR1999029379

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. James E. Anderholm		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, the applicant requests separation pay based on his 15 years of active duty, and physical disability retirement.  

APPLICANT STATES:  That a copy of a personal action form (DA Form 4107), which he submits as Exhibit “F” to his application, had been altered, to show an erroneous reason for his request to be released from the Active Guard/Reserve (AGR) program.  He states, in effect, that the reason he requested release from the program was the refusal of his superiors to allow him to have medical attention.

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

The applicant enlisted in the Army for three years on 7 November 1973 and was released from active duty on 1 November 1976 and assigned to a Reserve unit.  His service since that date has been with the Reserves, and since 1980 until his release from active duty in 1992, as an AGR soldier.

He was AWOL from 14 January 1985 to 18 January 1985 for which he received nonjudicial punishment under Article 15, UCMJ.  His NCO evaluation report for the 12 month period ending in May 1990 shows that he failed the Army physical fitness test.  His evaluation report for the 12 month period ending in May 1991 shows that his profile did not hinder his duty performance.

A 29 March 1992 counseling form shows that the applicant was relieved of his duties as a supply sergeant for failure to follow instructions.

A DA Form 4107 which the applicant submits as Exhibit “B” to his application shows that he requested release from the AGR program as soon as possible because of the refusal of superiors to allow him to have medical attention.  He signed that form on 1 April 1992.  Section V (Certification/Approval/Disapproval)  of that form was not completed.  A DA Form 4107 at Exhibit “F” again shows that the applicant had requested release from the AGR program as soon as possible; this time however, the reason for his request is shown as “Limited AGR career opportunities.”  He signed that form on 1 April 1992.  The signature and date on those forms are somewhat different, and the typing on both those forms differ in many respects, indicating that the first form at “Exhibit “B” was not altered, and that the form at “Exhibit F” was a completely separate document from the one at “Exhibit B”.  The form at “Exhibit F” does appear to indicate that the reason for release, “Limited AGR career opportunities”, was typed at a different time than the rest of the information on the form.  The applicant’s request, “Exhibit F”, was approved by his commanding officer on 1 April 1992.

On 30 April 1992 the applicant’s commanding officer recommended to the commander of the 315th Engineer Group that the applicant be issued a letter of reprimand for failure to comply with orders issued by the first sergeant; and when confronted by the first sergeant, he could not provide documentation to support his claim that he was on sick call.  The applicant’s commanding officer stated that the applicant’s performance over the past two years had been less than satisfactory, that he had issued the applicant a letter of reprimand on                 30 June 1990 for insubordination to a senior NCO, and that the applicant had been counseled several times for failure to follow instructions.

On 12 May 1992 the applicant’s group commander issued him a letter of reprimand.

On 18 June 1992 the Army Reserve Full Time Management Center at St. Louis approved the applicant’s request for voluntary early release from the AGR program.  He was released from active duty on 1 October 1992 at Fort Dix, New Jersey.  He had a total of 15 years, 4 months, and 21 days of active service, and 3 years, 6 months, and 10 days of inactive service. 

A 2 October 1993 VA medical record indicates that the applicant’s condition was diagnosed as diabetic, with a new onset of diabetes mellitus, and hypertension.

On 19 March 1996 the VA notified the applicant that his disability had increased in severity and that his left ulnar nerve neuropathy due to left elbow injury which was 0 percent had increased to 10 percent; that his diabetes mellitus was         20 percent disabling; and that his hypertension was 0 percent disabling.

The applicant was discharged from the Army Reserve on 8 June 1999.

DA Circular 635-92-1 prescribes the eligibility criteria for separation pay, and states in pertinent part, that a soldier is eligible to receive separation pay if he completes his initial term of enlistment and is being involuntarily separated, either at or prior to ETS, as a result of denial of reenlistment or denial of continuation on active duty or full-time National Guard duty.

The DOD financial management regulation provides statutory provisions for entitlement to separation pay, and states in pertinent part, that payment of nondisability separation pay is authorized to service members of the Reserve components who are involuntarily separated from active duty and meet one of the following criteria, (1) the member is on active duty or full-time National Guard duty and has completed at least 6 years, but less than 20 years, active service.  Reserve members not on the active duty list when separated must have 6 years of continuous active duty or full-time National Guard duty immediately preceding separation, or (2) the member was on active duty or full-time National Guard duty on 5 November 1990, and on that date had 5 or more, but less than 6, years of active service.  Reserve members not on the active duty list when separated must have 5 years of continuous active duty or full-time National Guard duty immediately preceding separation.
Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
Army Regulation 635-40, paragraph 3-2b states in pertinent part 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.  

That paragraph goes on to say that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his 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.

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.  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.  On 1 April 1992 the applicant volunteered to be released from active duty.  Although there are two requests for release from the AGR program, there is no evidence to show that the request approved by his commanding officer was fraudulent, as the applicant contends.  Howbeit, the reason matters not.  His voluntary request was ultimately approved and he was released from active duty. He was not denied the opportunity to continue on active duty.  His voluntary request for release from active duty precludes entitlement to separation pay.

2.   The applicant has provided no evidence to show that he was denied medical treatment while in the AGR program.  His continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

3.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

4.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.

5.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

6.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

7.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

8.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

9.  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 the aforementioned requirement.

10.  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

___jea___  ___emw_  ___jns___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029379	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000406	
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.  177	108.00	
2.	128.00	
3.		
4.		
5.		
6.