APPLICANT REQUESTS:  In effect, that he should be retired by reason of physical disability because he has been rated by the Department of Veterans Affairs (VA).

APPLICANT STATES:  That within a year of his discharge from the Army, he was evaluated at 60 percent by the VA.  A review of his entire military records will show that he should have been given a medical retirement after all of his exceptional military service.

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

He was born on 4 December 1954.  He completed 12 years of formal education.  He enlisted in the Regular Army on 19 August 1974, in pay grade E-1.  His Armed Forces Qualification Test score was 16 (Category IV).  He remained on active duty through reenlistments and an extension until his discharge on 25 September 1992.  He was advanced/
promoted to pay grades E-2, E-3, E-4, and E-5 effective 19 December 1974, 1 October 1975, 1 February 1976, and 2 December 1980, respectively.  His military occupational specialty was 76V (Material Storage and Handling Specialist).

The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on 8 October 1974 and 4 August 1980 for stealing flash cubes, film (two occasions), and a dog tag silencer.  His imposed punishment included a reduction (suspended), forfeitures, extra duty, and restriction.  He did not appeal his punishment on either occasion.

The applicant attended the Primary Leadership Development Course from 21 March 1986 through 18 April 1986.  He was a marginal graduate in that he required retraining and retesting in order to achieve a “GO” status.

The applicant attended the Material Storage and Handling Specialist Basic Noncommissioned Officer (NCO) Course from 3 March 1988 through 12 April 1988, and achieved course standards.

On 14 May 1990, his commander recommended that the applicant be barred from reenlistment.  She stated that the applicant had shown by his actions his unsuitability to remain a member of the U.S. Army; that, as an NCO, he had shown that he was unwilling to accept the duties and responsibilities as a leader; that only soldiers of high moral character, personal competence, and demonstrated adaptability to the requirements of the professional soldier should be allowed to reenlist in the U.S. Army; and that the applicant did not possess those qualities.  The applicant was counseled and advised of the basis for the action.  He did not submit a statement in his own behalf.

On 22 May 1990, his commander sent a request through the applicant recommending that he be denied an extension to attain retirement eligibility.  She indicated that her recommendation to deny retirement eligibility was based upon the facts contained in the applicant’s bar to reenlistment; that his inability to accept the duties and responsibilities as a leader had affected his job performance as an NCO; and that it had shown that he had no demonstrated potential for further service and should not be allowed to extend in the U.S. Army to attain retirement eligibility.

Subsequently, the Commander of the 169th Maintenance Battalion (a lieutenant colonel), the Commander of the 13th Corps Support Command (a colonel), and the Commander of the III Corps and Fort Hood (a brigadier general), recommended that the applicant be barred from reenlistment and denied the opportunity to extend to attain retirement eligibility.  Statements in support of their recommendations included, in effect, that the applicant’s duty and job performance as well as his abilities as an NCO made him a liability to his unit, the NCO Corps, and the U.S. Army; that actions of that nature could not and would not be tolerated in that unit; that those actions brought great discredit upon himself, his ability to be an effective NCO and be an asset to his unit and the U.S. Army; that the applicant had been counseled repeatedly on his ineffectiveness to perform his duties as a junior NCO; and that the applicant obviously lacked the potential to become the leader or senior technician of the future.
On 24 July 1990, the U.S. Army Enlistment Eligibility Activity approved the applicant’s bar to reenlistment.

On 21 August 1990, the applicant was advised of the approved bar to reenlistment and of his rights.  He indicated that he would not appeal the bar to reenlistment.

On 27 March 1992, the bar to the applicant’s reenlistment was reviewed.  His commander recommended that the bar to reenlistment remain in effect.

The following is a record of the applicant’s available enlisted evaluation reports for the period February 1976 through August 1988:  (The average score is shown with 125 being the maximum score achievable.)

125, 114, 125, 120.5, 124, 125, 120.5, 113*, 123.5, 122**, 122, 125, 125, 118***, 122, and 125.
__________
*The indorser stated that, through an improvement in his military appearance and writing skills, the applicant would earn more respect from his subordinates.
**The rater stated that the applicant needed to improve his communication skills and exhibit more initiative; and that, with further education and proper guidance, he would develop into a fine NCO.
***The rater stated that the applicant needed to take more initiative to develop his communication abilities; and that his physical conditioning could improve though he tried very hard to meet platoon standards.  The indorser stated that, at times, however, the applicant lacked the initiative to get the job done; and that he needed to raise his standards in physical training and take more initiative.

The following is a record of the applicant’s available NCO Evaluation Reports (NCOER):  (The rating system depicted below is limited to three entries:  the first entry is derived from Part Va (the rater’s rating of the NCO’s overall potential for promotion and/or service in positions of greater responsibility, expressed in Roman numerals, with “I” (Among he Best) the highest and “III” (Marginal) the lowest; and the last two entries are derived from Part Vc (the senior rater’s (SR) rating of the NCO’s overall performance) and Part Vd (the SR’s rating of the NCO’s overall potential for promotion and/or service in positions of greater responsibility) respectively, also expressed in Roman numerals, with “I through III” indicating a rating of “Successful/Superior,” “IV” indicating a rating of “Fair,” and “V” indicating a rating of “Poor.”)

Period			Type Report		Score/Rater/SR

Sep 88-Aug 89		Annual			I/III/II
Sep 89-Aug 90		Annual			II/III/III
Sep 90-Jun 91		Change of rater	II/III/III*
Jul 91-Oct 91		Change of rater	III/No SR**
Nov 91-Jan 92		Change of rater	III/IV/IV***
Feb 92-May 92		Change of rater	II/II/II
_________
*The SR stated that the applicant displayed some level of integrity.
**In Part IV-Values/NCO Responsibilities, the rater indicated “No” for “Is disciplined and obedient to the spirit and letter of a lawful order” and “Is honest and truthful in word and deed.”  Also, he commented that the applicant’s personal values and integrity were questionable; that the applicant was not always truthful in word and deed; and that the applicant did not maintain a strong leadership pattern.
***The rater stated that the applicant lacked the strengths to be an effective leader.  The SR indicated that he did not recommend the applicant for promotion or for advance schooling.

The available medical records indicate that the applicant was treated for various conditions during his military career.  His NCOERs indicate that he had a physical profile, and that the profile did not hinder his job performance.  On 16 June 1992, the applicant was given an expiration of term of service physical.  He was found qualified for retention/separation. His physical profile was shown as 111221.

The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates that he was honorably discharged on 25 September 1992 under Army Regulation 
635-200, paragraph 16-8 (qualitative retention program).  He 
had completed a total of 18 years, 1 month, and 7 days active military service.  He was assigned a reentry code of 4 (ineligible to reenlist).

A VA Rating Decision, dated 22 March 1993, assigned the applicant a combined service connected disability rating of 20 percent effective 11 September 1992 for residuals, low back injury, with nerve root irritation, and mild, left, L5 radiculopathy to the left lower extremity (20 percent), bilateral high frequency hearing loss (zero percent), hypertension (zero percent), right shoulder muscle strain (zero percent), and left shoulder muscle strain (zero percent).

A VA Rating Decision, dated 3 August 1993, assigned the applicant a combined service connected disability rating of 60 percent effective 11 September 1992 for residuals, low back injury with lumbar spinal stenosis, L4-5, L5-S1 with radiculopathy, left lower extremity, postoperative (60 percent), bilateral high frequency hearing loss (zero percent), hypertension (zero percent), right shoulder muscle strain (major) (zero percent), and left shoulder muscle strain (minor) (zero percent).  It was increased to 100 percent effective 6 May 1993 and then decreased to 60 percent effective 1 August 1993.

On 12 August 1993, the VA notified the applicant that, based on an increase in the severity of his service connected disability, his evaluation was increased to 60 percent for the condition spinal disc condition; that a temporary 100 percent disability rating had been assigned from the first of the month following his hospital admission for treatment of service connected disability; that the temporary evaluation would continue for a period of convalescence until 1 August 1993; and that, thereafter, his disability evaluation was 60 percent.

A VA Rating Decision, dated 23 February 1994, assigned the applicant a combined service connected disability rating of 60 percent effective 26 September 1992 for residuals, low back injury with lumbar spinal stenosis, L4-5, L5-S1 with radiculopathy, left lower extremity, postoperative (60 percent), bilateral high frequency hearing loss (zero percent), hypertension (zero percent), right shoulder muscle strain (major) (zero percent), and left shoulder muscle strain (zero percent).  It was increased to 100 percent effective 6 May 1993 and then decreased to 60 percent effective 1 August 1993.

A VA Rating Decision, dated 1 April 1995, indicated that the applicant was evaluated; that the evaluation of residuals, low back injury with lumbar spinal stenosis with radiculopathy of the right lower extremity was continued as 60 percent disabling; and that, since the disability could be subject to improvement, the assigned evaluation was not considered permanent and was subject to a future review examination.

Facts relating to the applicant’s contention are contained in an opinion (COPY ATTACHED) from the medical adviser to the Department of the Army Review Boards Agency, which is incorporated herein and need not be reiterated.  He opined that the applicant was not medically disqualified at the time of his separation from the Army.

Army Regulation 40-501, 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 3-2b, 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 10, U.S. 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.
Title 38, U.S. 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.  The VA, however, 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 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 VA 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, 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 this requirement.

2.  In the absence of medical evidence to the contrary, it is presumed that the available service records are correct as presently constituted.

3.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary.

4.  The Board notes that the applicant’s NCOERs indicate that he had a physical profile, and that the profile did not hinder his job performance.  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.

5.  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.

6.  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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director