MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           18 APRIL 2002                   
	DOCKET NUMBER:   AR2001064368

	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. Kenneth H. Aucockl		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Ronald E. Blakely		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:  Physical disability retirement or discharge.  

APPLICANT STATES:  That he received a 40 percent service connected disability from the VA in 1998 and then requested that the Army Reserve Control Group (Reinforcement) [IRR or Individual Ready Reserve] medically discharge him; however, he was informed that his prior Reserve unit would have to initiate the action.  His prior Reserve unit informed him that the responsibility rested with the IRR.  Nothing was done by either the IRR or his former unit and he was eventually discharged.  He states that the IRR sent him a notice in April 1999 that he would be released because of his numerous medical problems.  He should have been properly medically retired or discharged.

The applicant submits a copy of a 14 April 1997 memorandum from the staff supervisory administrator of the 18th Field Hospital to the Commander of the      99th Regional Service Command, in which that official requested that the applicant be voluntarily reassigned to the IRR, as he requested.  She stated that the applicant was currently undergoing treatment for Desert Storm illnesses, and that she scheduled him for a physical examination but the hospital did not want to address the problem.  She stated that the applicant could not function in any way with the hospital because of his permanent profile, and that he had asked to go to the IRR until his situation with the VA hospital was resolved.  She stated that the applicant did not want to be with his unit, and his attitude was detrimental to his unit. 

He submits a copy of a 14 January 1998 VA letter informing him of his service-connected disability compensation, stating that he had a combined evaluation of 40 percent.

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

The applicant served four years in the Navy and was released from active duty on 30 May 1986 and transferred to the Naval Reserve.

On 21 April 1989 the applicant enlisted in the Army Reserve for three years.  On 24 January 1990 he extended his enlistment for four years, entailing a new ETS (Expiration Term of Service) date of 20 April 1996.  The applicant was a medical specialist and was promoted to pay grade E-4 on 20 November 1990.  

The applicant served in Southwest Asia from 2 January 1991 to 10 May 1991 in support of Operation Desert Shield/Storm.  He was released from active duty on 5 June 1991 and transferred to his Reserve unit.

A 13 September 1992 report of medical examination shows that the applicant was medically qualified for retention with a physical profile serial of 2 1 1 1 1 1.  That report indicated that he was “borderline overweight” and “borderline elevated ___ cholesterol.”  In the report of medical history he furnished for the examination the applicant stated that he was in good health.  The report indicated that the applicant had stated that he had frequent headaches since his duty in Saudi Arabia and that he had chronic sinusitis.   

A 23 November 1993 physical profile report shows that the applicant had a physical profile serial of 2 2 2 2 2 2 because of Desert Storm illnesses.  That report was signed by an official of the Hampton Veterans Hospital.  An exact duplicate of that report, signed by the same official on the same date, and which includes the name of a Reserve medical officer, without a signature and which appears to be dated 24 May 1994, shows the applicant had a physical profile serial of 3 2 2 1 1 1.   Neither report was approved, nor was there any indication of any action taken by the applicant’s unit commander.   

On 20 April 1996 the applicant reenlisted in the Army Reserve for three years.

On 25 June 1997 the applicant was assigned to the Army Reserve Control Group (Annual Training) at St. Louis.  The order effecting the assignment indicated that it was voluntary.

On 17 August 1999 the applicant was discharged from the Army Reserve.

Title 10, United States Code, chapter 61, provides 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 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.
Army Regulation 635-40, chapter 8, outlines the rules for processing through the disability system soldiers of the Reserve component who are on active duty for a period of less than 30 days or on inactive duty training; and outlines the criteria under which soldiers of the Reserve component, whether or not on extended active duty, apply for continuance in the active Reserve.

Paragraph 8-2 states that soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, etc.

Paragraph 8-6 states that when a commander believes that a soldier not on extended active duty is unable to perform his duties because of physical disability, the commander will refer the soldier for medical evaluation.  Paragraph 8-6b states in effect, that the medical treatment facility will forward the medical evaluation board to the soldier’s unit commander for disposition under applicable regulations. 

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were 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.  Notwithstanding the applicant’s contentions, there is no evidence, nor has the applicant submitted any, to show that he is entitled to an evaluation by a physical evaluation board or a medical evaluation board.  The applicant reenlisted in the Army Reserve in 1996, more than two years after he was given a physical profile, indicating that he was medically qualified for retention in the Army Reserve.  He voluntarily requested transfer to the IRR in 1997.  His profile notwithstanding, he apparently continued to serve in his unit until his transfer to the IRR. 

2.  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.

3.  The award of VA compensation does not mandate disability retirement or separation from the Army.  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.

4.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

5.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

6.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

7.  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 that requirement.

8.  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

__FNE __  __BJE    _  __REB__  DENY APPLICATION

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

INDEX

CASE ID	AR2001064368	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020418	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.	177	
3.		
4.		
5.		
6.