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

APPLICANT STATES:  The applicant states that he sustained a fracture to his foot during basic training and was unable to complete that training.  He should have received physical disability.

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

The applicant enlisted in the Army on 2 November 1984 and was assigned to Fort Leonard Wood, Missouri for basic training.

A 16 November 1994 medical report indicates that the applicant’s right foot showed no evidence of any obvious fracture or dislocation.  There was a normal variant in the bone which might simulate a fracture, but was not to be mistaken as such.

A 29 November 1994 medical report indicates that the applicant had an apparent stress fracture to his right foot.

A 2 December 1994 report of mental status evaluation indicates that the applicant claimed to be intellectually slow with poor motor skills, that he erred in enlisting, felt that he was a risk because of his slow learning history, and felt that he should go home.  The applicant claimed that he scored low on tests but that the recruiter was able to enlist him under a special program.  The applicant had been trying, but now wants to be discharged.  The applicant claimed that he graduated from high school with special education classes, claimed to have dyslexia, and claimed to be a slow learner.  The examining psychiatrist stated that the applicant appeared to have a dull normal intellect and low self esteem.  That official stated that the applicant did not appear to be motivated to be a soldier, and had made no significant improvement in his performance.  The psychiatrist stated that the applicant seemed to be dramatizing his claimed learning problems in an effort to be discharged.  He recommended that the applicant be administratively eliminated from the Army.  The applicant was mentally responsible, and had the mental capacity to understand and participate in proceedings.

The applicant himself made a statement on 2 December mirroring some of the information contained in the aforementioned report of mental status evaluation, and also stated that he had a third or fourth grade level of school education, that he had missed so much training he found things difficult for himself, that the Army had not worked out for him, and was not the right place for him. 

A 5 December 1994 counseling statement indicates that the applicant had problems understanding his requirements as a soldier, that additional time was required to train him, that even so, the applicant became confused and frustrated, forgetting what he was supposed to do.  The applicant had missed numerous hours of physical and other training.  That official stated that it would be best if the applicant be separated from the Army.  The applicant’s first sergeant concurred in this assessment and stated he was recommending that the applicant be separated.  The applicant’s commanding officer stated that he was recommending that the applicant be separated.

On 5 December 1994 the applicant stated that he understood that he was not required to undergo a medical examination for separation, however he could request one.  If he elected not to undergo a medical examination, he stated that he understood that his medical records would be reviewed, and if the review indicated that he needed an examination, one would be scheduled.  The applicant stated that he did not desire a separation medical examination.  A review of the applicant’s medical records was conducted and a determination made that he did not require a medical examination for separation.

On 9 December 1994 the applicant’s commanding officer initiated action to separate the applicant for sociological reasons under Army Regulation 635-200, Chapter 11.  That official stated that the applicant lacked the mental aptitude needed to complete training or to become a productive soldier.  He went on to say that every effort had been made to train the applicant, but he had consistently performed far below standards and further training would be pointless.  He stated that he was recommending that the applicant receive an entry level separation.

The applicant acknowledged notification of the proposed separation action, and stated that he understood that if the action were approved he would receive an entry level separation - uncharacterized.  He stated that he had been afforded the opportunity to consult with appointed counsel for consultation, or military counsel of his own choice, or civilian counsel at his own expense.  He declined the opportunity.  He stated that he had been advised of his rights and he waived those rights in writing.

The applicant’s commanding officer recommended to the separation authority that the applicant be separated.  On 
13 December 1994 the separation authority approved that recommendation and directed that the applicant receive an entry level separation - uncharacterized.  The applicant was discharged on 16 December 1994.  He had 1 month and 15 days of active service. 

On 25 October 1995 the VA awarded the applicant a 10 percent service connected disability rating for fracture to his right foot, stating that his condition had existed prior to his military service but worsened as a result of service.  The VA denied the applicant’s request for service connected disability for dysthymic disorder.

Army Regulation 635-200 sets forth the basic authority
for the separation of enlisted personnel.  Chapter 11 of
that regulation provides for the separation of personnel
in an entry level status for unsatisfactory performance
or conduct as evidenced by inability, lack of reasonable
effort or a failure to adapt to the military
environment.  These provisions apply only to individuals
whose separation processing is started within 180 days
of entry into active duty.  An uncharacterized
separation is mandatory under this chapter.  Separation will
be accomplished within 3 duty days following approval by the 
separation authority.

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’s discharge proceedings were conducted in accordance with applicable law and regulations.  His entry level separation and the characterization of his discharge as uncharacterized were warranted based on the circumstances of his discharge.

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.  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.

3.  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.

4.  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.

5.  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.

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 the aforementioned 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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director