RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 October 2005 DOCKET NUMBER: AR20050001720 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Mr. Edmund P. Mercanti Analyst The following members, a quorum, were present: Ms. Barbara J. Ellis Chairperson Mr. Hubert O. Fry Jr. Member Mr. Robert Rogers Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of the Board’s denial of his request to correct his placement on the Retired List for years of service to a medical separation. 2. The applicant states that he had a hard time assembling his Department of Veterans Affairs (VA) and military medical records when he was being separated.  He believes that if he had those documents, he wouldn’t have been separated due to his having a Department of the Army bar to reenlistment imposed on him. 3. The applicant provides: a. a Summary of MOS/Medical Retention Board (MMRB) Proceedings, dated 3 April 1995. Those proceedings show that the applicant had a permanent physical profile as a result of degenerative joint disease of his lumbar spine and hypothyroidism. That physical profile prohibited him from wearing a rucksack, marching over two miles, lifting over 25 pounds, and performing the two mile run.  However, those conditions did not prevent him from performing the full range of physical tasks required of his military occupational specialty in a worldwide field environment. The MMRB recommended retaining the applicant; b. a letter dated 24 April 1999 which informed the applicant that a DA bar to reenlistment had been imposed on him, provided him the reasons the bar was imposed, and provided him with the options he had at that point; c. a physical profile dated 10 July 2000 which shows the applicant had thyroid disorder, fatigue and chronic diarrhea. The profile prohibited him from driving more that 2 hours in a 24 hour period, working over 8 hours in a 24 hour period, and required that he work at his home station while testing was being conducted on him; and d. VA rating decisions which show that the applicant was awarded a VA disability pension effective 1 November 2000, and that he is currently rated 80 percent disabled by the VA. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20040005488 on 16 June 2005. 2. The Performance section of the applicant’s Official Military Personnel File (OMPF) shows that the applicant’s performance declined on the Noncommissioned Officer Evaluation Report (NCOER) for the period ending November 1996, and remained substandard for the remainder of his active service. Comments contained on this NCOER include: a. Sometimes becomes absent minded or preoccupied with events not related to task at hand; b. Poor performance causes extra work for others; c. On several documented occasions the applicant has failed to demonstrate the appropriate knowledge and expertise in his job; d. Does not motivate, challenge or develop his subordinates; e. Does not communicate effectively with peers, superiors or subordinates; f. Does not take the responsibility for his actions; g. Has shown no evidence of mentoring his subordinates; h. Requires supervision to ensure the tasks are accomplished; i. Lacks the supervisory skills of a senior NCO; and j. Knowledge of general training regulations and policies could be better. 3. Army Regulation 635-40 stated that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty (until he is referred to the physical disability system for evaluation for separation) creates a presumption that the member is fit for duty. Such a member should not be referred to a PEB unless his physical defects raise substantial doubt that he is fit to continue to perform the duties of his office, grade, rank or rating. 4. Army Regulation 635-40 continued by stating that the presumption of fitness may be overcome if the evidence established that: a. the Soldier, in fact, was physically unable to adequately perform the duties of his office, grade, rank or rating even though he was improperly retained in that office, grade, rank or rating for a period of time; or b. acute, grave illness or injury or other deterioration of physical condition, that occurred immediately prior to or coincidentally with the Soldier’s separation for reasons other than physical disability, rendered him unfit for further duty. 5. Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish error or injustice in the Army not separating the individual for physical unfitness. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.   6. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability. Accordingly, it is not unusual for the VA to award a veteran a disability rating when the veteran was not separated due to physical unfitness. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency’s examinations and findings. DISCUSSION AND CONCLUSIONS: 1. While the applicant was separated as a result of a DA bar to reenlistment, it is apparent from his NCOERs that he was barred from reenlisting because of substandard performance which was unrelated to his medical problems. 2. The applicant’s records show that he had long-standing medical problems while he was on active duty. He was evaluated by an MMRB in 1995 which determined that even with his permanent physical profile for degenerative joint disease of his lumbar spine and hypothyroidism, his medical conditions did not prevent him from performing the full range of physical tasks required of his military occupational specialty in a worldwide field environment. 3. While the applicant was given another physical profile on 10 July 2000, the only added diagnoses were fatigue and chronic diarrhea. There is no evidence or indication that either of these conditions were medically disqualifying. 4. Since the applicant was not determined medically disqualified prior to him being notified that he was being separated due to his bar to reenlistment, the presumption of fitness applies in this case. 5. As for the applicant’s VA disability pension, as mentioned above, the VA compensates a veteran based solely on the individual having a service connected medical condition which impairs the veteran’s employability. The VA does not and can not make a determination on a Soldier’s fitness for duty, which is the criteria required by regulation for the Army to either place a Soldier on the Retired List for physical unfitness, or to discharge a Soldier with disability severance pay. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___hof __ ____rr___ ___bje___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20040005488 dated 16 June 2005. _________Barbara J. Ellis_________ CHAIRPERSON INDEX CASE ID AR20050001720 SUFFIX RECON YYYYMMDD DATE BOARDED 20051019 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. 2. 3. 4. 5. 6.