MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 
                                         


	BOARD DATE:            12 May 1999                  
	DOCKET NUMBER:   AC96-08054
				   AR1999025682

	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:  In effect, physical disability retirement.

APPLICANT STATES:  That she was already receiving 20 percent for a back disability from the Army when she was activated and sent to Desert Shield/Storm.  That she was told there were no medical records and she could not have a medical board.  That her records are stamped that she received non-FDA approved chemical warfare shots over in the Persian Gulf.  That she is currently receiving 30 percent and all she wants is what’s due her, her medical retirement.

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

She initially enlisted in the Army in April 1986, served at Fort Bragg, North Carolina, and attained the rank of specialist (E-4).  She was honorably separated in April 1990 and transferred to a Reserve troop program unit (TPU).

Subsequent to her separation, the VA awarded the applicant a service connected disability compensation rated at 20 percent for low back pain with intermittent episodes of sciatica. 

On 20 September 1990 the applicant was ordered to active duty with her TPU in support of Operation Desert Storm/Shield and was initially deployed to Saudi Arabia.  She served 5 months overseas and then returned with her unit to Fort Bragg.

An 18 November 1991 report of medical examination indicates that the applicant was medically qualified for redeployment (release from active duty) with a physical profile of 111111.  She was released from active duty on 16 December 1991 and returned to her Reserve unit.

A VA rating decision, dated 21 August 1993, awarded the applicant a service connected disability compensation for residuals, left shoulder, rated at 
10 percent, for a combined service connected disability rating of 30 percent.

Title 10, US 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 635-40, Physical Evaluation for Retention, Retirement, or Separation, 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.

Paragraph 3-2b(1) of the regulation 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.

Paragraph 3-2b(2) further 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 provide treatment and to award compensation for disabilities which were incurred in or aggravated by active military service.

In the processing of this case, an advisory opinion (COPY ATTACHED) was obtained from the staff medical advisor.  It contains no information, advice or recommendation which would constitute a basis for granting the relief requested.
The applicant’s demobilization physical examination included an orthopedic consultation for a history of low back pain, unspecified.  She was also evaluated for shoulder impingement syndrome.  The result was that all her complaints of low back pain were subjective without objective signs to support the feelings of pain.  The orthopedist stated that the applicant was fit for separation, did not warrant a medical evaluation board (MEB), did not require additional therapy, and she was worldwide deployable with no limitations due to physical condition.

On 26 February 1999 the applicant was given the opportunity to rebut the foregoing advisory opinion.  She failed to respond within the established 30-day time limit afforded her by this 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.  The applicant’s assertion that she was receiving 20 percent disability from the Army when she was recalled and sent to Desert Shield/Storm is not correct.  Her disability rating was awarded by the VA after her separation in April 1990.

2.  The applicant’s military service was not interrupted by physical disability.  Notwithstanding the presence, or possible presence, of various medical conditions, there is no evidence of record, nor has the applicant provided sufficient evidence, which would indicate that she suffered from any medical condition of such severity that she was rendered unable to reasonably perform the duties of her office, rank, grade or rating.

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 fitness for Army purposes.

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.  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




						Loren G. Harrell
						Director



INDEX

CASE ID
AC9608054/AR1999025682
SUFFIX

RECON

DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
145.00
2.
142.00
3.
110.00
4.

5.

6.