MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                       3 August 2000 
	DOCKET NUMBER:              AR1999030797

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Calvin M. Fowler		Member	
	Mr. Edwin S. Castle		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 his nondisability retirement be changed to disability retirement retroactive to at least 1994.

APPLICANT STATES:  That his nondisability retirement under Title 10 USC Section 3911 be changed to placement on the permanently retired list (PRL).  He also states that he believes there is a grave injustice to disabled retirees, particularly to veterans with combat-related disabilities, in terms of tax exclusions.  In support of his application he submits a copy of an attachment
describing the cited injustice, a copy of an extract from the Code of Federal Regulation (CFR), a copy of a sample calculation of the difference between nondisability and disability retirement, a copy of Form 1099-R (Distribution from Pensions, Annuities and Retirement), a copy of Defense Finance and Accounting Service (DFAS) Retiree Account Statement, a copy of his VA Claim dated 14 March 1979, a copy of a VA printout, dated 31 January 1991, a copy of his DD Form 214 and a copy of an attachment (medical).

EVIDENCE OF RECORD:  The applicant's military records show he was appointed as a second lieutenant in the Regular Army on 4 June 1954 in the Infantry Branch and continued to serve until he was placed on the Army of the United States Retired List effective 1 January 1978 in the pay grade of 
Colonel/0-6.

The applicant’s separation medical examination and medical records are not available for review by this Board.

The applicant provided several documents and calculations showing that he would receive more money had he been retired for disability.

After his retirement, the applicant filed a claim with the VA for a service connected disability for minimal arthrosis deformans (arthritis in right shoulder joint), residuals of the fracture of vertebrae, a right elbow condition, residuals of a left rib cage injury and a scar resulting from surgery for right gynecomastia (excessive development of the male mammary glands).  On 14 March 1979 he was granted ten percent service connected disability for minimal arthrosis deformans right AC joint, ten percent for residuals of fracture vertebrae and zero percent for his right elbow condition, residuals of a left rib cage injury and the scar resulting from right gynecomastia surgery.

Section 3911, Title 10, United States Code, states that the Secretary of the Army may, upon the officer’s request, retire a regular or reserve commissioned officer of the Army who has at least 20 years of service computed under section 3926 of this title, at least 10 years of which have been active service as a commissioned 

officer.  The Secretary of Defense may authorize the Secretary of the Army, during the period beginning on 1 October 1990, and ending on 30 September 2001, to reduce the requirement under subsection (a) for at least 10 years of active service as a commissioned officer to a period (determined by the Secretary of the Army) of not less than eight years

Section 1403, Title 10, United States Code, pertains to disability retired pay: treatment under Internal Revenue Code of 1986.  It states that part of the retired pay of a member of an armed force, computed under formula No. 1 or 2 of section 1401, or under section 1402(d) or 1402a(d) of this title on the basis of years of service, which exceeds the retired pay that he would receive if it were computed on the basis of percentage of disability is not considered as a pension, annuity, or similar allowance for personal injury, or sickness, resulting from active service in the armed forces, under section 104(a) of the Internal Revenue Code of 1986.

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

Army Regulation 635-40, paragraph 3-2b(2), provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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 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.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were 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 concerns.

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 applicant was on active duty from 4 June 1954 to 31 December 1977.  His service personnel records do not indicate any medical condition incurred, while entitled to receive basic pay, which was so severe as to render the applicant medically unfit for retention on active duty.  Accordingly, the applicant was placed on the retired list for reasons other than physical disability.

2.  The applicant’s service personnel records fail to show that the applicant had any medically unfitting condition, which required physical disability processing.  

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.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is 
rated to service (“service-connected’) and effects the individual’s civilian
employability.  Furthermore, the VA can evaluate a veteran through his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and must assign an appropriate disability rating before he or she can be medically retired or separated.

5.  The Board noted that the applicant provided calculations showing that he would receive more money had he been retired for disability.  However, this information has no bearing on whether or not the applicant should have retired by reason of disability.

6.  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 this requirement.

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:

JNS_____  CMF____  ESC____  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR1999030797	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000803	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19771231	
DISCHARGE AUTHORITY	AR/title 10 retirement	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177		
2.		
3.		
4.		
5.		
6.