APPLICANT REQUESTS:  That his military records be corrected to show that he was retired by reason of physical disability.

APPLICANT STATES:  That he was not properly counseled at the time; and that he was subsequently rated 100 percent disabled by the VA and the Social Security Administration.

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

He entered active duty on 15 February 1984 in an Active Guard/Reserve (AGR) status during the period of time in question and served as a field recruiter in the rank of sergeant first class.

Service medical records are not in the available records; however, a VA document indicates that he was hospitalized at William Beaumont Army Hospital in December 1991 and January 1992 with a diagnosis of major depression.

On 5 March 1992 he submitted a memorandum requesting that his AGR status be terminated effective 30 June 1992.  In the memorandum he also wrote that he was submitting another “request for transfer to the USAR Control Group, IMA (Individual Mobilization Augmentation) as I plan to relocate back to Chicago, Illinois, my original home of record.”

On 30 June 1992 he was relieved from active duty by reason of his expiration of term of service.

A VA Rating Decision, dated 8 February 1994 shows that after establishing that the applicant suffered from a mental disorder which had its onset during military service, the VA awarded him a 100 percent disability rating (currently approximately $2,000.00 monthly compensation).

Documents pertaining to compensation awarded by the Social Security Administration is not in the available records.

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 3, provides standards for medical retention. Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty and are referred for disability processing.

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 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.

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 evidence that shows that the applicant was treated for a mental disorder while he was serving on active duty, and absent evidence to the contrary, it is reasonable to presume that he was not discharged from an Army hospital until he was determined by competent medical authority to be fit for duty.

2.  There is no evidence of record, nor has the applicant submitted sufficient evidence which would indicate that his mental disorder was of such severity while he was serving on active duty that he should have been referred through a medical evaluation board to a physical evaluation board.

3.  The applicant’s military service was not interrupted by physical disability.  His military career was interrupted when his request to terminate his AGR status as of 30 June 1992 was approved.  Further, his request to be assigned to the USAR Control Group indicates that he believed at that time that he was fit for further military service.

4.  The applicant’s continued performance of duty until his expiration of term of service raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

5.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different law and 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.

6.  An award of compensation by the Social Security Administration, which also operates under different law than the Army, is not evidence of physical unfitness for military service.

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