MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 February 1999                   
	DOCKET NUMBER:   AC97-10452
				   AR1999015699

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Van B. Cunningham		Member	
	Ms. Carol Jo Suiter		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 be changed to a disability retirement.

APPLICANT STATES:  He had been receiving medical treatment for his gout but he was never referred to a medical board.  He now receives VA disability for this condition.

COUNSEL CONTENDS:  That the application, in conjunction with the official military and medical records, amply advance the applicant’s contentions and substantially reflect the probative facts needed for equitable review.

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

He enlisted in the Regular Army on 4 February 1976 and had continuous service until his discharge.  His last 12 years in service he performed duties as a helicopter repairer.

The applicant’s medical records do verify treatment for gout and/or joint problems for a number of years.

The applicant was awarded the Senior Aircraft Crewman Badge for the period  15 May 1980 – 15 August 1991.  One of the eligibility criteria for award of this badge is to be on flying status.

The applicant’s last non-commissioned officer evaluation report (NCO-ER) for the period January – December 1991 show that he was rated as a “success” in all five performance categories and that he passed his Army Physical Fitness Test (APFT) in June 1991.

The applicant’s Personnel Qualification Record, Part I, dated 11 December 1991 shows his physical profile serial (PULHES) as 111111.

On 1 September 1992, the applicant completed a separation physical examination and was found qualified for separation.  His PULHES at this time was shown as 111211 (the “2” for a hearing loss problem).

On 26 September 1992, the applicant was discharged, in pay grade E-6, under the provisions of Army Regulation 635-200, chapter 16-8, Reduction in Authorized Strength - Qualitative Early Transition Program.  He had completed 16 years, 7 months and 22 days of creditable active service.

The VA rated the applicant’s gout condition with a 20 percent evaluation, later increased to a 60 percent evaluation.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  In pertinent part, it states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that a soldier is fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

Army Regulation 40-501 governs the awarding of physical profiles.  An individual having a numerical designation of “1” under all factors of the PULHES is considered to possess a high level of medical fitness.  A numerical designation of “2” under any factor indicates that an individual possesses some medical condition of physical defect which may require some activity limitations.

Title 38, United States 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.

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.  There is no evidence of record to show the applicant was ever given a physical profile limiting his duties.  The evidence of record does show that he was able to successfully perform his duties and pass his APFT.  The applicant was presumed to be fit at the time of his separation.

3.  The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating. 
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

__INW___  __VBC___  __CJS___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-10452/AR199915699	
SUFFIX		
RECON		
DATE BOARDED	19990211	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.