MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 March 2000
	DOCKET NUMBER:   AR1999030005

	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.

	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Roger Able		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, that his Narrative Reason for Separation be changed from Parenthood to Medical Retirement.

APPLICANT STATES:  That as of 26 September 1994 the VA awarded him 40 percent service connection for a disability (low back pain) which was incurred while he was in the service.  He states that his disability rating increased to 60 percent as of 1 June 1997 and that he is now rated at 100 percent because he is unemployable.  In support of his appeal he submit a copy of VA Rating Decision dated 1 May 1997.

COUNSEL CONTENDS:  That based on the applicant’s contentions and the overview of the available record, this Board complies with the request to changed the applicant’s Narrative Reason for Separation to Medical Retirement. Counsel contends that the applicant sustained a back injury while in the military and, as a result of his injury, he was granted service connection for residuals of low back injury as directly related to service which was the day following his discharge.

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

On 20 May 1992, the applicant underwent a medical examination and he was found to be qualified for enlistment in the USAR.  Accordingly, on 22 May 1992, he enlisted in the USAR for 8 years in the pay grade of E-1.  

He enlisted in the Army on 15 November 1993 and he successfully completed his training as a carpenter and masonry specialist.

The facts and circumstances pertaining to the applicant's discharge are not on file.  The Certificate of Release or Discharge, DD Form 214, indicates that the applicant was released from active duty on 26 September 1994, under the provisions of Army Regulation 635-200, chapter 6, for parenthood, and was issued an Honorable Discharge Certificate.  He was transferred to the USAR Control Group (Annual Training).  He completed 10 months and 12 days of total active service.

On 20 January 1995, the applicant enlisted in the Pennsylvania Army National Guard in the pay grade of E-3.

The facts and circumstances pertaining to the applicant's discharge from the PAARNG are also not on file.  The Report of Separation and Record of Service, NGB Form 22, indicates that the applicant was discharged on 18 August 1996, 

under the provisions of National Guard Regulation 600-200, paragraph 8 at the request of the soldier (Receipt of VA Disabilities), and was issued an Honorable Discharge Certificate.

The VA Rating Decision dated 1 May 1997 shows that the applicant was awarded service connection for residuals of low back injury at 40 percent disabling from 27 September 1994 with an increase to 60 percent from 4 September 1996.  On 5 May 1997, the VA determined that he was unemployable and evaluated his injury at 100 percent effective 3 May 1997.

The applicant’s medical records were not available for review.  A review of the available records fails to show that the applicant suffered a back injury while he was in the Army.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.    In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career. 

Title 38, United States Code, section 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 the aforementioned requirement.

2.  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.

3.  The applicant’s and his counsel’s contentions have been noted by the Board. However, the there is no evidence in the available record that shows that the applicant was found to have suffered from a medical disqualification that would have rendered him unfit for retention in the Army.

4.  In the absence of medical evidence to the contrary, it is presumed that the available service records are correct as presently constituted.

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

___slp___  ____ja___  ____ra__  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030005	
SUFFIX		
RECON		
DATE BOARDED	2000/03/23	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1996/08/18	
DISCHARGE AUTHORITY	AR 600-200	
DISCHARGE REASON	534	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.0000	
2.  178	108.0100	
3.		
4.		
5.		
6.