MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:     
                                           


	BOARD DATE:          13 May 1999
	DOCKET NUMBER:  AC96-08678
			             AR1999025606

	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:  Physical disability retirement.

APPLICANT STATES:  That the military organization ignored medical information concerning the severity of his medical condition.  That his pertinent declining health problems (left side body, sinusitis, urination control, lungs, blurry vision, high blood pressure, sleeping disorder, chronic memory loss, and lower back and hip pain) should be considered as evidence to support his case.  In support of his application, he submits copies of his military medical records, and Social Security and VA medical evaluations.

COUNSEL CONTENDS:  That delays in making this decision weigh heavily on his client and his family, both physically and financially.  The delays show no regard for his clients loyal service to his country.  That he has thoroughly reviewed all records submitted and it would appear the applicant’s request meets all guidelines for approval.

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

He was appointed a Regular Army commissioned officer in the rank of second lieutenant, Air Defense Artillery, on 22 December 1979.  He served on continuous active duty until 31 October 1992, when he was released from active duty and transferred to the Reserve.  He was promoted to major on 1 November 1991.

On 14 September 1992 the Total Army Personnel Command approved the applicant’s unqualified resignation under the Voluntary Separation Incentive (VSI) Program in support of the Army drawdown.

The applicant was released from active duty on 31 October 1992 and transferred to the Army Reserve Control Group (Reinforcement).  He had 14 years, 5 months and 9 days of creditable service and received $15,075.65.

A final (release from active duty) officer evaluation report covering the period 
26 April 1992 through 31 October 1992 rated the applicant as a mobilization plans officer while stationed at Fort Knox, Kentucky.  The report credited him with maintaining an appropriate level of physical fitness to the highest degree, and indicated he passed the Army Physical Readiness Test in June 1992.

Subsequent to separation the VA awarded the applicant a combined service connected disability compensation rated at 20 percent for exercise induced asthma and hypertension.



In response to the applicant’s request of 12 July 1995, the Director of Compensation, Office of the Assistant Secretary of Defense, advised him that they were not authorized to back date his VA disability rating of 20 percent to his date of separation, that it would be his burden of proof to show that his separation physical was inadequate.  However, since he accepted both a VSI payment as well as an appointment in the Army Reserve as a major in October 1992, both of these actions would appear to be prima facie evidence of suitability for active (or reserve) duty.

A VA rating decision dated 20 November 1995 indicated that the applicant’s hypertension was under good control without medication and reduced his evaluation of 10 percent to zero.  That his exercise induced asthma was rated at 10 percent and his previous 20 percent service connected rating was therefore reduced to 10 percent effective 1 February 1996.

Army Focus 1993, an official Department of the Army publication, shows that the Army began reducing the size of its force in 1990 and continues to do so due to congressional budget constraints.  Since the beginning of this reduction, the size of the force has decreased by nearly 200,000 soldiers.  (To meet the 1996 goal, the size of the force was to be decreased by another 55,000 soldiers.)

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.

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, 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 officer.  It contains no information, advice or recommendation which would constitute a basis for granting the relief requested. 

The above medical opinion was provided to the applicant’s counsel and no response has been received as of 10 May 1999.

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 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 he suffered from any medical condition of such severity that he was rendered unable to reasonably perform the duties of his office, rank, grade or rating.

2.  The applicant’s military career was not interrupted by physical disability.  He was separated from active duty at the time, along with thousands of other soldiers, because of the downsizing of the force.  Further, at the time of release from active duty he was found medically qualified for transfer to the Army Reserve as a commissioned officer.

3.  The applicant did not have any medically unfitting disability, by Army standards, which required physical disability processing.  Therefore, there is no basis for physical disability retirement or 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.  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
AC96-08678/AR1999025606
SUFFIX

RECON

DATE BOARDED
19990513
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

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

5.

6.