ABCMR Memorandum of                                                               AC
Consideration (cont)

ABCMR Memorandum of                                                              AR2002082953
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  11 September 2003
	DOCKET NUMBER:  AR2002082953

	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. Joyce A. Wright | | Analyst

  The following members, a quorum, were present:

| Mr. Stanley Kelley | | Chairperson
| Mr. John T. Meixell | | Member
| Mr. Christopher J. Prosser | | 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 appeal to correct his military records by showing that his separation be changed to a medical retirement with a 100 percent disability rating.

APPLICANT STATES:  That he had a permanent physical profile excusing him from wearing a Kevlar helmet and that the Board did not take this information into consideration when it made its decision not to change his honorable discharge to medical retirement with a 100 percent disability rating.  In support of his application, he submits a copy of his Department of Veterans Affairs (DVA) Rating Decision, dated 27 February 1995.

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 AR2002074126 on 10 September 2002.

The applicant’s contentions are new arguments that require Board consideration.

The Board originally concluded that there was no evidence to show that the applicant was ever unfit to perform his military duties as a unit supply specialist.  There was no evidence to show he ever had a physical profile (temporary or permanent) and his DA Form 2A (Personnel Qualification Record) showed that in October 1994 he had physical profile of 111121.  The "2" was recorded under the heading for eyes to indicate that applicant wore glasses.  His Standard Form 93 (Report of Medical History) indicated that he was in good health.  The applicant checked the "NO" block for history of skin disease.

The applicant provided a copy of a DVA Rating Decision, dated 27 February 1995, that was unavailable for review during the processing of his original case.  
The rating decision stated that the applicant was placed on permanent profile, excusing him from wearing a Kevlar helmet.  There is no evidence of record or provided by the applicant that he was issued this permanent physical profile.

Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical
designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower
extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical 

designator "1" under all factors indicates that an individual is considered to 
possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reasons other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her 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.

An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. 

Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

Title 38, United States Code, section 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active service.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

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 notes the applicant's contentions and evidence provided; however, his permanent profile excusing him from wearing a Kevlar helmet was not available for review by this Board when his original decision was made and is currently unavailable for review during his reconsideration.  

2.  The Board notes the DVA Rating Decision, dated 27 February 1995 that was provided by the applicant, was also unavailable for review during the processing of his original case which indicated that he was placed on permanent profile, excusing him from wearing a Kevlar helmet.  However, this information does not provide evidence to change the outcome of the Board's original decision.  

3.  The Board's original decision clearly stated that there was no evidence to show that he was ever unfit to perform his military duties as a supply specialist.    

4.  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.

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

__sk____  ___jm___  ___cp___  DENY APPLICATION

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

INDEX

CASE ID | AR2002082953
SUFFIX |
RECON | Yes-AR2002074126
DATE BOARDED | 20030911
TYPE OF DISCHARGE | HD
DATE OF DISCHARGE | 19941031
DISCHARGE AUTHORITY | 635-200, chap 4
DISCHARGE REASON | ETS
BOARD DECISION |
REVIEW AUTHORITY |
ISSUES         1. | 177
2. |
3. |
4. |
5. |
6. |