MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

BOARD DATE:           16 May 2000                  
DOCKET NUMBER:   AR1999034522

	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	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Lester Echols		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 her application to correct her records by showing she was released from service due to physical disability. 

APPLICANT STATES:  In effect, that she had a neck and back injury while on active duty that continues to preclude her from working.  She contends that she should have been afforded a Medical Evaluation Board (MEB) and that a Physical Evaluation Board (PEB) should have reviewed her case.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of her case on 21 October 1999 (COPY ATTACHED).

The applicant submits copies of her VA medical records for the period 19 June 1995 through 3 November 1999.  These documents show treatment principally from the Mental Health Unit (MHU) for depression, as well as reports for the evaluation and treatment for neck and upper back pain and a degenerative disk at C6-7. 

These documents were not available to the Board previously and constitute new evidence that requires Board review.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation and render care 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.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his or her 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.

2.  Although the documents do show a continuing and worsening condition, the applicant has submitted no evidence that she was unable to perform her assigned duties at the time of her release from duty.

3.  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.

4.  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

__AAO__  ___VBC_  ___LE__     DENY APPLICATION

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

INDEX

CASE ID	AR1999034522	
SUFFIX		
RECON	 	
DATE BOARDED	20000516	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.	108.02	
3.		
4.		
5.		
6.