MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 May 2000      
	DOCKET NUMBER:   AR1999034643

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Thomas B. Redfern, III		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, that all of the misconduct for which he received nonjudicial punishment under Article 15, UCMJ was the result of his medical condition and that his reenlistment (RE) code of RE-3C is unfair.  He again complains that he should have been separated for physical disability.  He submits a copy of a 19 April 1999 VA rating review decision that denied an increase of his 60 percent rating for narcolepsy and declined to find him unemployable.  It noted that the applicant was rated at 10 percent from 1982 and at 60 percent from 23 July 1997.  The decision also noted that that the Chief of Neurology at the VA Medical Center, Madison Wisconsin, where he was evaluated believed that the applicant should take the indicated medication and enter vocational rehabilitation.

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 12 August 1999 (COPY ATTACHED).

The VA rating is, technically, new evidence that requires Board consideration.  It might point to error or injustice in the handling of the applicant’s case. 

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 individuals 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. 

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-3C applies to persons who have completed more than 4 months service who do not meet the basic eligibility pay grade requirements of chapter 2, Army Regulation 601-280, or who have been denied reenlistment under the Qualitative Retention Process according to chapter 10, Army Regulation 601-280.

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 Board finds no credibility in the applicant’s assertion that narcolepsy which results in excessive sleeping is an excuse for repeated instances of disrespect or for possession of marijuana.  

2.  His reentry code of RE-3C was the result of his misconduct.  There appears to be no basis for removal or waiver of that disqualification which established the basis for the reentry eligibility code. 

3.  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.

4.  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.

5.  Additionally, 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.  In this case, the applicant’s back problem was not considered by the MEB/PEB because there was no evidence that it was affecting his performance of duty.

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

__MKP__  ___GSP_  ___TBR__  DENY APPLICATION

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

INDEX

CASE ID	AR1999034643	
SUFFIX		
RECON		
DATE BOARDED	20000510	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.