APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement.   

APPLICANT STATES:  That his disabilities should have been rated at least as 30 percent disabling at the time of his discharge. 

COUNSEL CONTENDS:  Counsel provides a review of the applicant’s contention, that the applicant had been treated for problems with his right hand and elbow, and for gastritis while on active duty, for which he is receiving a VA disability rating.  Counsel requests that the Board review his contention that he should be granted physical disability retirement (COPY ATTACHED).  

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

The applicant entered active duty from the South Carolina Army National Guard on 25 May 1989 for four years.  He served in Saudi Arabia from 23 September 1990 until 
23 March 1991.  

Medical records show that the applicant was treated for problems with his right thumb and right elbow, and for gastritis, on various occasions in 1990 and 1991.  

On 20 November 1991 the applicant requested release from active duty under the enlisted voluntary early release program.  On 5 December 1991 the applicant elected not to undergo a medical examination for separation from active duty.  His request for release from active duty was approved on 9 December 1991, and he was released at Fort Stewart, Georgia on 24 January 1992 under the provisions of Army Regulation 635-200, chapter 4, for the convenience of the government under the FY 92 early transition program.

A 27 January 1992 medical prescreening form completed by the applicant indicates that he had no physical impairments, diseases, medical conditions or problems, and that he had not been treated for any illness or injury, to include broken bones.  On 30 January 1992 he underwent a medical examination for the purpose of enlisting in the Army National Guard.  This report indicates that the applicant was qualified for enlistment with a physical profile of 
1 1 1 1 1 1.  In the report of medical history he furnished for the examination, the applicant stated that his only injuries or diseases was a broken bone to his right thumb, which had been treated.

The applicant enlisted in the South Carolina Army National Guard for three years on 30 January 1992.

On 20 July 1992 the VA awarded the applicant a 10 percent service connected disability rating for fracture to his right thumb, a 10 percent rating for a hyper extension injury to his right elbow, and a 10 percent rating for gastritis.  Increased evaluations for those conditions were denied by the VA on 13 January 1995.

A 8 September 1992 memorandum from the applicant’s South Carolina Army National Guard commander requested that an investigation be conducted into the applicant’s possible fraudulent enlistment.  That official stated that the applicant should be discharged because he unintentionally omitted information concerning his medical condition during his enlistment processing and physical examination, and that had his true condition been known, he might have been found unsuitable for enlistment.  He went on say that the applicant filed his claim for service connected disability after his enlistment, and that had it been known that such a claim was being considered, his enlistment would have undoubtedly been postponed.  He stated that the applicant had been awarded a combined 30 percent service connected disability, which rendered him unsuitable for service in the Army National Guard, and would have made him ineligible for enlistment.

The applicant was discharged from the Army National Guard on 1 November 1992. 

A 25 October 1995 VA medical examination indicates that the applicant was diagnosed as having post traumatic stress disorder (PTSD), and alcohol dependence, in remission, among other medical conditions.

On 11 November 1995 the VA notified the applicant that his claim for service connected disability compensation for PTSD was under advisement.

The applicant has submitted a claim to the VA for disability benefits for exposure to environmental hazards during military service in the Persian Gulf.  On 26 January 1996 the VA notified him that he would be advised concerning his claim.  

Army Regulation 635-200 provides the policy and procedures for the separation of enlisted personnel.  Chapter 4 provides for the separation of soldiers upon expiration of their term of service.  Chapter 5 provides for the separation for the convenience of the government.

A Total Army Personnel Command message of 13 January 1992 provided instructions for the voluntary and involuntary early release of soldiers.  That message states, in part, that all applications for voluntary separation from enlisted soldiers must include requested early transition date and that the narrative reason for the separation is convenience of the government.  Authority for separation is Army Regulation 635-200, paragraph 5-3.

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 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.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a
member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

Title 38, United States 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 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 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(s), it is concluded:

1.  The applicant himself stated that he did not desire a medical examination for separation from active duty.  Six days after his release from active duty he underwent a medical examination for the purpose of enlisting in the Army National Guard and was determined to be medically fit for enlistment.  Absent medical information to the contrary, the applicant was medically fit for retention at the time of his separation.  Neither the applicant nor counsel has submitted any probative medical evidence to the contrary.             

2.  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.

3.  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.

4.  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.

5.  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.

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

7.  The applicant was released from active duty for the convenience of the government, however, his DD Form 214 (Certificate of Release or Discharge from Active Duty) lists an erroneous separation authority, i.e., Chapter 4 of Army Regulation 635-200, instead of Chapter 5.
                       
8.  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 aforementioned requirement.
9.  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.

NOTE:  The Army Reserve Personnel Center at St. Louis will be requested to review the applicant’s DD Form 214 to make administrative corrections as deemed appropriate.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director