MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            26 April 2000
	DOCKET NUMBER:   AR1999030795

	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:

	Mr. Stanley Kelley		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Curtis L. Greenway		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:  That her late husband’s records be corrected to show that he was medically discharged instead of showing that he was discharged at the expiration of his term of service.

APPLICANT STATES:  That her husband, a former service member (FSM), was denied service connected disability by the VA because his Report of Transfer or Discharge (DD Form 214) fails to show that his illness.  She states that the records that were used by the VA to deny his claim for a service connection disability rating were false as evidence which would have proved he had cancer while he was in the Army was omitted.  She goes on to state that the VA failed to mention a kidney removal scar or tumors on his neck and chest but focus on a burn scar.  She continues by stating that not only were the entries in his records misleading, vital information was omitted from his records.  She states that the FSM was suffering from cancer for a long period of time and she believes that the case should be reopened because too much information was omitted at the time that the VA made it’s decision.  In support of her appeal, she submit a copy of the FSM’s Certificate of Death, photographs of the FSM, a copy of his DD Form 214, a copy of his Transfer or Release to Reserve Component (DA Form 1270), a copy of his Honorable Discharge Certificate, a copy of a Letter of Appreciation dated 22 June 1955, copies of his medical records which reflect tests and treatment that he underwent after his discharge from the Army, a copy of his Government Operator’s Permit and Liberty Pass, a copy of a letter from the VA dated 25 February 1963 denying the applicant’s claim for death benefits, a copy of a letter from the VA dated 10 April 1963 awarding the applicant the unpaid pension due her husband, a copy of a letter from the VA dated 19 April 1963 addressed to the FSM explaining that his diagnosis of carcinoma right testicle with metastasis, post-operative appendectomy scar and burn scar to the right pretibial were not incurred in or aggravated by service.  The letter from the VA further explained that farrunculosis was not found on his last examination and that the evidence of record did not show an injury to his back and groin.  She also submits copies of a letter from the VA explaining why VA benefits are paid to legal custodians of minor children and documents showing the amount to be paid and copies of letters written to her by the FSM while he was in the Army.

EVIDENCE OF RECORD:  The FSM’s military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from alternate sources.

On 28 December 1953, he enlisted in the Army for 3 years in the pay grade of 
E-1 and he successfully completed training as a wheel vehicle mechanic.

His DD Form 214 shows that he was honorably discharged on 13 December 1956, under the provisions of DA Circular 635-14 dated 19 October 1956 and Army Regulation 635-250 (Christmas Release).  He had completed 2 years, 11 months and 16 days of total active service.
On 19 April 1962, the VA notified the FSM that his disability compensation claim had been denied as he had no service-connected disabilities.  The VA further stated that the carcinoma of his right testicle with metastasis, his post-operative appendectomy scar and the burn scar to his right pretibial were not incurred in or aggravated by military service.  The VA concluded by stating that farrunculosis was not found on the FSM’s last examination and that the evidence of record failed to show an injury to his back and groin.

A review of the available information fails to show that the FSM was suffering from any illnesses while he was in the Army that would have qualified him for medical retirement.

Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, provides for the medical retirement and for the discharge for physical unfitness, with severance pay, of soldiers who incur a physical disability in the line of duty while serving on active or inactive duty.  However, the disability must have been the proximate result of performing military duty.

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 FSM’s DD Form 214 shows that he was discharged from the Army on 13 December 1956.  The applicant has failed to submit any evidence to show that the FSM’s disabilities were incurred in or aggravated by military service and this Board has no jurisdiction over the rating decisions made by the VA.

3.  The applicant’s contentions have been noted by the Board.  However, a review of the available information fails to show that the FSM 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 must be 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

__sk____  ___kak__  ___clg___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030795	
SUFFIX		
RECON		
DATE BOARDED	2000/04/26	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1956/12/13	
DISCHARGE AUTHORITY	AR 635-250 	
DISCHARGE REASON	455	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.0000	
2.  180	108.0300	
3.		
4.		
5.		
6.