MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           7 June 2000                   
	DOCKET NUMBER:   AR1999033760

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. James P. Stueve		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 discharge under the provisions of Army Regulation 635-200, chapter 11 be changed to a medical discharge.

APPLICANT STATES:  That he injured his shoulder in September 1999 but continued to train.  His pain worsened and he became ill.  He was hospitalized and given several different medications.  He was not getting any better and the medications caused him extreme difficulty in performing his duties.  He requested to return home to seek further medical attention.

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

He enlisted in the Regular Army on 18 August 1999.

The applicant’s service medical records are not available.  His discharge packet is not available.

On 14 October 1999, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 11, for entry-level performance and conduct.  His character of service was uncharacterized.  He had completed 1 month and 27 days of creditable active service.

On 21 October 1999, the applicant wrote to the Department of Veterans Affairs apparently in filing a disability claim, wherein he stated he was seeking help for the injuries and psychological effects he suffered while in the Army.

The applicant provides a physical examination document dated 22 October 1999. The document is partially illegible but it can be determined that his chief complaint was left shoulder and low back pain.  He had injured his shoulder        1 year previously and reinjured it while in the Army. There was tenderness upon palpitation of the left shoulder and pain to resisted abduction and adduction but there was good range of motion and good muscle strength.  Depression and off-and-on abdominal pain was also noted.

Army Regulation 635-200, chapter 11 sets the policy and prescribes procedures for separating members who were voluntarily enlisted in the Regular Army, National Guard or Army Reserve, are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of creditable continuous service, and have demonstrated that they are not qualified for retention.  The following conditions are illustrations of conduct that does not qualify for retention:  cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service.  Before initiating separation action, commanders will ensure that the soldier receives adequate counseling and rehabilitation in accordance with chapter 1, section II.  Unless the reason for separation requires a specific characterization, a soldier will be awarded an uncharacterized description of service if in an entry-level status.  (For Regular Army soldiers, entry level status is the first 180 days of continuous active duty.)

Army Regulation 40-501 governs medical fitness standards for enlistment, retention and separation.  In pertinent part, it states that cause for referral to a medical evaluation board for a shoulder problem is when the joint ranges of motion do not equal or exceed a forward elevation to 90 degrees or abduction to 90 degrees.

Title 38, U. S. 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.  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 and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  Although the applicant’s service medical records are not available, the Board notes his contention that he was hospitalized and given several different medications which caused him extreme difficulty in performing his duties.  However, the physical examination taken only 1 month after his discharge noted his complaints as left shoulder and low back pain.  Depression and abdominal pain were mentioned only in passing.  The Board concludes from this physical examination that any problems he had while in the Army other than his shoulder (he did not contend he had low back pain while in the Army) would have been self-limiting and not eligible for consideration by a physical evaluation board.  

3.  The Board notes that the applicant’s October 1999 physical examination indicated there was tenderness upon palpitation of the left shoulder and pain to resisted abduction and adduction; however, there was good range of motion and good muscle strength.  The Board concludes that he did not meet the medical limitations required for referral to a medical evaluation board and, hence he was not eligible for a medical discharge.  If the VA should award the applicant disability compensation for this or any other medical condition in the future, such rating action by the VA would not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

4.  Although the Board does not have the applicant’s chapter 11 discharge packet, he contends that he requested to return home to seek further medical attention.  The Board concludes that it would have been reasonable for his command to have considered his request to indicate a lack of motivation on his part.

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

__mkp___  __esc___  __jps___  DENY APPLICATION

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

INDEX

CASE ID	AR1999033760	
SUFFIX		
RECON		
DATE BOARDED	20000607	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.