MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 April 2000                  
	DOCKET NUMBER:   AR1999030660

	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. W. W. Osborn, Jr.		Analyst	

The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Van B. Cunningham		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: Reconsideration of his earlier application to correct his records by showing that he was separated from active duty due to medical disability retirement.

APPLICANT STATES: In effect, the applicant defers to counsel.

COUNSEL CONTENDS:  That the applicant’s retirement was not voluntary.  He was erroneously advised that he could submit a conditional request.  Did not intend to retire until he knew the outcome of his disability case.  Counsel contends that the presumption of fitness was improperly applied, that the applicant was physically unfit and should have been rated at least 70 percent disabled .  To substantiate this rating, counsel cites the VA’s action in rating the applicant at 100 percent for his neurological bowel problem and notes that additionally his orthopedic conditions are collectively rated at 20 percent.  Counsel contends these circumstances overcome the presumption of fitness.  Counsel also contends that a 14 May 1996 “Addendum to Medical Board “ was not seen by the PEB.

They submit a statement from an individual who processed the applicant’s request at Fort Hood, Texas.  This individual relates that the applicant asked him to hold the request, which he did until someone at the applicant’s assignment branch directed him to submit it.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case on 19 August 1998 (COPY ATTACHED).

The submissions are new evidence and argument that  require Board consideration.

The 14 May 1996 “Addendum to Medical Board“ relates that the applicant reported numerous episodes of fecal incontinence following a September 1995 prostatectomy that permanently damaged his rectal nerve.  The condition was considered permanent and essentially untreatable.
 
The Army Physical Disability Agency (USAPDA) has noted in advisory opinions in similar cases that confusion frequently arises from the fact that the Army and the DVA use different rating systems.  While both use the Veterans Administration Schedule for rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army.  The Army rates only conditions determined to be physically unfitting, because they adversely effect the individual’s ability to perform assigned duties, thus compensating the individual for loss of a career.  The DVA, on the other hand, may rate any service-connected impairment, in order to compensate the individual for loss of civilian employability or social functioning.  The USAPDA has also pointed out that military disability ratings are based upon the degree to which a medical condition effects the ability to perform duty and not upon the diagnosis or name attached to the condition.  By way of comparison, the VA can and does rate an individual for pain in many instances.  The Army can only rate the same painful condition if it impairs the soldier’s ability to perform assigned tasks. 

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 presumption of fitness was not improperly applied nor has it been overcome.  The is no evidence that the applicant was not performing his assigned duties and his medical condition(s) did not result in the loss of his career.  

2.  The applicant received the process that was due him.  The “Addendum to Medical Board“ written after the PEB decision is not relevant because disability is a matter of impairment in the performance and not just a matter on medical descriptions.  The Army does not base disability ratings upon a diagnosis but upon the degree to which a condition impairs the soldier’s ability to perform duty.

3.  There is no evidence that the applicant was improperly advised that he could submit a conditional request for retirement or that his retirement was anything but voluntary.  Furthermore, he was not discharged before his disability case was fully adjudicated.  His request for retirement was cited in the advisory opinion associated with the original ABCMR consideration.  However, there is no evidence, nor reason to believe, that it was a significant factor in the PEB’s decision.  The applicant could have presented evidence that he was not performing his assigned duties, but he did not and has not done so. 

4.  The award of a VA compensation rating does not mandate change of nor demonstrate an inequity in a military disability rating.  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.  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.

5.  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.

6.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7.  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

__jph ___  __eja____  __vbc___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030660	
SUFFIX		
RECON		
DATE BOARDED	20000419	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.