MEMORANDUM OF CONSIDERATION


IN THE CASE OF:   


	BOARD DATE:         28 January 1999                  
	DOCKET NUMBER: AC96-06700
				 AR1999015230


	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.




	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:  That his "service connected disability status" be changed to "Incurred as a direct result of armed conflict or instrumentality of war."  In effect, he is requesting that his military records be corrected to show that he was separated from active duty by reason of a combat-related physical disability.

APPLICANT STATES:  In essence, that he served in combat in Vietnam; that he believes that his service during that period of time caused him to be unfit for military service; and that granting his request would provide him a Civil Service benefit.  Further detail is outlined in a typed 3-page letter which is attached to his application and need not be reiterated.

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

That, with 10 years, 9 months, and 2 days prior active service, during which time he served in Vietnam from 5 October 1967 to 3 November 1968, and subsequent service in the Army Reserve in the grade of warrant officer one, he again entered active duty on 18 July 1969.  He then served again in Vietnam from 
17 September 1970 to 16 September 1971 as an armored cavalry squadron supply section chief.

He received Regular Army promotions to the grades of CW2 and CW3 on 
19 June 1974 and 13 November 1978, respectively

On 15 January 1979, he submitted a request for voluntary retirement.  He requested that he be placed on the retired list on 1 April 1979 or as soon thereafter as practicable and stated, in part, "I will have completed over 20 years active Federal Service on the requested retirement date." 

The applicant's separation physical examination shows that he was found medically qualified for retirement with a physical profile serial (PULHES) shown as 211111.  A notation made by the examining physician shows that the applicant suffered from essential hypertension at the time; and that the illness was controlled by medication.  (Essential hypertension is described in 
The American Medical Association Encyclopedia of Medicine as elevated blood pressure with no obvious cause.  Hypertension normally causes no symptoms and generally goes undiscovered until detected by a physician during the course of a routine physical examination.  Treatment consists of weight reduction, reduction in stress, and medication).

On 30 April 1979 he was separated from active duty and, on the following day, his name was placed on the retired list.

Documents submitted by the applicant indicate that he was granted service connection by the VA for hypertension, a back condition, and a skin rash.
On 6 January 1983 he was notified by the VA that "Our records do not show that any of your service-connected disabilities [were] incurred as a direct result of armed conflict or instrumentality of war.  In addition, there is no medical basis to support such finding as it pertains to your service-connected disabilities.  Our records do show that your hypertension and back condition occurred during Vietnam service and if you wish a copy of the rating citing this, it may be furnished at your request."

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501, Standards of Medical Fitness, 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.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 4-19c, provides that a disability may be considered a direct result of armed conflict if it was incurred while the member was engaged in armed conflict or in an operation or incident involving armed conflict, a direct casual relationship exists between the armed conflict and the disability, and the disability was incurred during one of the period of war as defined by law, e.g., the Korean War (beginning 27 June 1950 and ending 31 January 1955), and the Vietnam Era (beginning 5 August 1964 and ending 7 May 1975).  

Army Regulation 635-40, paragraph 4-19j, provides that certain advantages accrue to soldiers who are retired for physical disability and later return to work for the Federal Government when it is determined that the disability for which retired was incurred under specific circumstances.  These advantages concern preference eligible status with the Civil Service System and exemption of retired veterans to the provisions of the Dual Compensation Act (Title 5, United States Code, section 5532).  As part of its findings, the physical evaluation board (PEB) will make an entry in block 10A of the PEB Proceedings form to reflect its determination as to whether the disability was the direct result of armed conflict or an instrumentality of war.

Army Regulation 635-40, paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

Army Regulation 635-40, paragraph 3-2b(1), provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

Army Regulation 635-40, paragraph 3-2b(2), provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

Title 38, United States Code, section 3.303, provides that the term “Service connection” connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.  Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.”

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  Notwithstanding the presence, or possible presence of various medical conditions, there is no evidence of record that the applicant suffered from any illness or injury at the time of his separation from active duty that was of such severity that he was rendered unable to reasonably perform the duties of his office, grade, rank or rating.

2.  The applicant’s military service was not interrupted by physical disability.  His military career was interrupted following the approval of his voluntary retirement application.

3.  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.

4.  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 before he or she can be medically retired or separated.

5.  The issue as to whether a direct casual relationship exists between the armed conflict and the disability is a determination to be made following a finding of physical unfitness for military service.  Since the applicant has not established physical unfitness prior to his separation from active duty, that issue is moot. 

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

LS______  RWG___  CLG_____  DENY APPLICATION




						Loren G. Harrell
						Director



INDEX

CASE ID
AC96-07600
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR .  .  .  .  .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.
108.04
2.
108.07
3.
108.08
4.

5.

6.