MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:  
	


	BOARD DATE: 21 January 1999                             
	DOCKET NUMBER:  AC97-08890

	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 essence, that he be given compensation by the Department of Veteran Affairs (DVA) or that his uncharacterized discharge be changed to a medical discharge.

APPLICANT STATES:  In essence, that Army doctors alleged the injury to his right eye occurred during or at birth.  However, he feels that he should be compensated because he completed his first enlistment obligation and was honorably discharged.  Further, he was able to pass all physical examinations prior to his last enlistment.  

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

The evidence available show that the applicant had prior honorable enlisted service in the Regular Army (RA) from 23 September 1986 through 22 June 1988.  When he was released from the RA, he was transferred to the United States Army Reserves (USAR) and served until he was honorably discharged on 26 March 1990.  On 27 March 1990, he reenlisted in the RA for 4 years, military occupational specialty (MOS) 19E00 (Armor) and pay grade E-3.  

On 17 July 1989, while in the USAR, the applicant took a medical examination that shows he had impaired vision in his right eye that was correctable to visual acuity of 20/200.   

The applicant was referred to an optometrist who referred him to ophthalmology after he failed testing for his military driver’s license.  On 11 May 1990, an ophthalmologist diagnosed the applicant as having Axial Myopia (nearsightedness) and Anisometropic Amblyopia (lazy eye), the right eye, correctable to 20/40.  

On 11 May 1990, an Entrance Physical Standards Board (EPSBD) determined that the applicant did in fact have Axial Myopia and Anisometropic Amblyopia which are disqualifying conditions in accordance with AR 40-501, Chapter
2-13a(1), and Chapter 2-13c(4).  However, due to the applicant’s prior service and the fact that he functioned well with his condition, the Board recommended that he be retained and that his MOS as a tank driver be changed to provide an MOS which would not require him to drive a military vehicle.  

On 16 May 1990, the applicant was informed of the medical board’s determination.  He noted the findings, but requested to be discharged.   His commander recommended that the applicant’s request for discharge be approved.  On 29 May 1990, the separation authority approved the recommendation and directed issuance of an uncharacterized discharge.  On 
1 June 1990, the applicant was discharged under the provisions of chapter 5,  Army Regulation 635-200,  “for failure to meet procurement medical fitness standards.”  He had completed 1 year, and 9 months prior active service and he had completed 2 months and 5 days on the enlistment under review. 

In connection with his application, the Medical Advisor to this Board, opined (COPY ATTACHED), in essence, that the applicant failed to meet procurement medical fitness standards, and he requested to be discharged after the EPSBD recommended retention with a P3 profile.   Evidence of record shows that the applicant’s condition existed prior to enlistment and there is nothing in the applicant’s record to indicate that his condition was aggravated by his military service.

The above advisory opinion was referred to the applicant for comment or rebuttal, but he failed to respond.

Title 10, United States Code, at chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.  However, a disqualifying medical condition existing prior to entrance into active service is not a basis to determine eligibility for a medical discharge.

Title 38, United States Code, section 310 and 331, permits the DVA to award compensation for a medical condition(s) which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical fitness for further military service.  The DVA, 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 DVA benefits based on an evaluation by that agency.

Army Regulation 635-200 sets forth the basic authority for separation of soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to active duty or active duty training.  Paragraph 5-5 provides that individuals discharged under the provisions of chapter 5, would be awarded a character of service to honorable, under honorable conditions or an uncharacterized description of service if in an entry level status.  Entry Level Status is defined as an individual in his/her initial 180 days of service.  

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.  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

2.  The EPSBD determined that the applicant had medical conditions that were disqualifying for enlistment and existed prior to entry on active duty.  The applicant agreed with these findings and he requested separation from the Army after the Board recommended that he be retained.

3.  The DVA awards compensation for medical condition(s) that were incurred in or aggravated by active military service.  There is nothing in the applicant’s record and he has submitted nothing that indicates his conditions were aggravated by his military service.

4.  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

KJN_____  FNE_____  JPI_____  DENY APPLICATION




						Loren G. Harrell
						Director



INDEX

CASE ID
AC08890/AR1999015919
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
19990121
TYPE OF DISCHARGE
(HD)
DATE OF DISCHARGE
19900601
DISCHARGE AUTHORITY
AR635-200  
DISCHARGE REASON
Failure to meet procurement medical fitness standards
BOARD DECISION
(NC)
REVIEW AUTHORITY

ISSUES         1.
He was honorably discharged after his first enlistment. 
2.
Prior to this enlistment he was able to pass all physical exams.
3.

4.

5.

6.