MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 March l999                  
	DOCKET NUMBER:   AC97-09551
                                              AR1999015954

	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	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner 		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:  In effect, a change of his honorable discharge and length of service retirement, to a medical disability retirement, with l00 percent disability from 31 July 1980.

APPLICANT STATES:  In essence, he had a permanent “100 percent physical assignment geographical, climatic restricted for over 11 years”.  The medical board did not consider his complete medical records.  He lists a number of medical problems to include chronic diarrhea, chronic gastrointestinal disorder with gastric reflux and malabsorption syndrome, disease of the thyroid, chronic bronchitis, disease of the left ventricle of the heart, positive PPD test and a undiagnosed disease.  He submits copies of his medical records from 1965 through 1980.  Department of Veteran Affairs (DVA) records have also been obtained and are included with the record.

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

The applicant enlisted in the Regular Army on 25 March 1960, with a moral waiver for a juvenile offense.  His service thereafter was continuous until his retirement from active duty on 31 July 1980.  The highest rank he attained was sergeant first class, pay grade E-7.  His records show three periods of absence without leave between July and October 1962 totaling 71 days, but a waiver was granted for reenlistment.  He was initially trained and assigned as a Combat Engineer (military occupational specialty) MOS 121.00/12B;  and from 1970 in MOS 64C Truckmaster.  He serve two assignments in the Republic of Vietnam and had other assignments in Germany and Okinawa.  

Between May 1969 and January 1970, the applicant underwent a number of hospitalizations and out-patient testing for excessive weight loss at Fitzsimmons General Hospital, Denver, Colorado.  The diagnosis at the time was Intestinal Enzyme Defect with Malabsorption.  He was assigned a physical profile of 3 and had extensive duty restrictions to include no field duty, no strenuous activity, no oversea assignments and no assignment to duties involving continued consumption of combat rations.  He was assigned to Fort Riley, Kansas, and remained assigned there until he retired.

On 19 October 1977, the applicant was ordered to appear before a MOS Reclassification Board.  The Board did not make a definitive determination concerning his MOS, but stated that he should appear before a Medical Evaluation Board (MEBD) essentially to determine if he was fit for continued duty.  

On 8 December 1977, the applicant was referred by local medical authorities to Fitzsimmons Army Medical Center for reevaluation.  That Center’s diagnoses, dated l7 January 1978, were “1.  Chronic weight fluctuation, etiology undetermined, possibly anxiety-related; no evidence for malabsorption at this time;” and “2.  Positive intermediate strength PPD by history; no evidence for active tuberculosis.”  He was returned to duty with the same profile and duty restrictions.

On 12 June 1979, the applicant underwent a MEBD.  The MEBD’s diagnosis was: “Chronic weight fluctuation, etiology undetermined, possibly anxiety related; no evidence of malabsorption.”  The report went on to note that it was the consensus of the Medical Board that the applicant met Medical Fitness Standards under the provisions of Chapter 3, Army Regulation 40-501.  He appealed this decision, but it was denied on 16 October 1979.  

On 14 February 1980, the applicant underwent a retirement physical examination and was found qualified for retirement.  The notation was made that the applicant “Has met MEB for above problem & found fit.”

On 31July 1980, the applicant was released from active duty for the purpose of retirement.  He was credited with 20 years, 1 month and 25 days active duty.  On 
1 August 1980 he was placed on the retired list.  His records contain a copy of a Orders F-11-073898, dated 16 November 1981, US. Army Reserve Components and Administration Center, which orders the applicant to duties at Fort Drum, New York, in the case of full mobilization.

The DVA records available to the Board show that he has undergone extensive evaluations and examinations by the DVA.  His initial disability rating from the DVA was a combined 10 percent disability, 10 percent for malabsorption syndrome, etiology undetermined; and 0 percent for hemorrhoidectomy.  Both ratings were from 1 August 1980.  This rating was increased to a combined rating of 30 percent disabling (30 percent for the malabsorption condition, 0 percent for the hemorrhoidectomy) on 15 February 1989.  The applicant listed several other medical conditions which were not determined to be service connected.  Further, his claim for unemployability was not supported.  A decision as to his claim of multiple residuals for exposure to Agent Orange was deferred, apparently pending publication of a new regulation.  

On 8 September 1995, the DVA conducted an extensive rating review of the applicant’s case.  Service connection was denied for lung disease, tuberculosis, psychiatric disorder, thyroid disease, pancreatitis and removal of lymph nodes secondary to Agent Orange exposure.  His claim for service connection for a nervous condition, to include post traumatic stress disorder (PTSD) was found not to be well grounded.  An increase in his 30 percent combined rating was denied.  An rating for unemployability was denied.  However, a 0 percent disability rating for a service-connected generalized anxiety disorder in connection with his malabsorption condition was granted from 30 September 1993.

On 21 August 1996, the Social Security Administration determined that the applicant was 100 percent unemployable due to exposure to Agent Orange.

The evidence available to the Board indicates that the DVA changed the 
0 percent disability rating for a generalized anxiety disorder, to include PTSD, from 0 percent to l0 percent effective 30 September 1993, then to 30 percent.  This was finally increased to 70 percent disabling effective 7 November 1996.  The DVA also granted entitlement to individual unemployability effective 
7 November 1996.

The medical advisor to the Board has reviewed this case and opined (COPY ATTACHED) that the applicant had a MEBD and was found fit for duty on 
12 June 1979.  On 14 February 1980, he was found medically qualified for retirement.  Therefore, the applicant was fit for duty when he retired.  The applicant is not eligible for medical retirement.  

This opinion was referred to the applicant who responded (COPY ATTACHED).  He disagreed with the medical advisor’s opinion.  He contends, essentially, that his service-connected medical problems that he suffered from 1970 through 
1980 while on active duty, were anxiety related.  He includes extracts of his military medical and DVA records.  Since this determination is supported by the rating decisions by the DVA, he believes that he is entitled to a medical retirement from the military.  

Title l0, United States Code, at chapter 61, provides for 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.

Army Regulation 40-501, at paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties 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 38, United States Code, section 3l0 and 33l, permits the DVA to award compensation for a medical condition(s) which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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 DVA 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, and advisory opinion(s), 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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.   The medical evidence of record indicates that the applicant was medically fit for retention at the time of his retirement.  He has submitted no probative medical evidence to the contrary.  This is supported by the advisory opinion provided to the Board.

3. The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

4.  An award of a DVA rating does not establish entitlement to medical retirement or separation.  The DVA is not required to find unfitness for duty.  Operating under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the DVA 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.

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

_CWB___  _RJW___  __EB ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-09551/AR1999015954	
SUFFIX		
RECON		
DATE BOARDED	19990304	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19800731	
DISCHARGE AUTHORITY	AR635-200, C12	
DISCHARGE REASON	A03.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	110.02	
2.	108.00	
3.	A01.13	
4.	A92.00	
5.		
6.