MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 May 1999
         DOCKET NUMBER: AC97-07458
                           AR1999023895

         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.

Mr. Loren G. Harrell		Director
Mr. David H. Keller		Analyst

The following members, a quorum, were present:

Mr. Ernest M. Willcher		Chairperson
Mr. Hubert O. Fry Jr.		Member
Ms. Margaret C. Thompson		Member

         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)

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APPLICANT REQUESTS: In effect, physical disability retirement rated at
100 percent.

APPLICANT STATES: That his Crohn’s disease was misdiagnosed.

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

He enlisted on 21 November 1977 and served continuously through a series of reenlistment until his separation in September 1992.

Medical records show that the applicant was issued a 90-day temporary physical profile for chondromalacia, left patella, that expired on 12 September 1986; and another 60-day temporary physical profile for loose bodies, left knee, that expired on 27 June 1987.

On 17 June 1992 the applicant submitted a request for voluntary early separation under the provisions of Army Regulation 635-200, paragraph 16-8, and the Fiscal Year 1992 Enlisted Voluntary Early Transition Program. With a total of 14 years, 10 months and 8 days active service, he was separated and transferred to the Individual Ready Reserve on 29 September 1992 with entitlement to a Voluntary Separation Incentive (VSI) payment of $6717.72 (first payment) for 28 years.

A VA Rating Decision dated 6 November 1993 awarded the applicant a service connected disability rating of 10 percent (later upgraded to 40 percent) for Crohn’s Disease, and a 10 percent rating for left knee injury, with early arthritis.

In December 1991Department of the Army announced the Voluntary Separation Incentive Program (VSIP) to support the Army drawdown. In the interim, the Secretary of Defense was in the process of drafting guidance for the administration and payment of separation incentive pay for both officer and enlisted personnel in overstrength inventories to encourage them to leave active duty voluntarily. On 20 December 1991 the Department announced the provisions of the National Defense Authorization Act, which established the VSIP and two separation incentive options. Both separation incentive options, the VSI and the Special Separation Benefit (SSB), were offered jointly. Service members who applied and were approved for the VSIP had the option of receiving either the VSI or the SSB.

Those who chose the VSI were to receive an annual payment equal to 2.5 percent of his/her annual basic pay, multiplied by 12 and multiplied again by the number of years of active federal service. The member had to agree to serve in the Ready Reserve for the entire period that he/she received annual payments.


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 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. The Board was advised that the applicant was released from active duty under a Voluntary Early Transition Program and from available military medical documentation, a diagnosis of Crohn’s Disease at the time of separation could not be substantiated.

In response to the foregoing medical advisory opinion, a Congressional reply furnished this Board a copy of a 10 March 1999 doctor’s statement (COPY ATTACHED) indicating that the applicant had a long standing history of inflammatory bowel disease.



A response from the staff medical advisor commented that the applicant has presented no new medical evidence to support his claim of a service connected disability. The information requested has not been provided, specifically: (1) was the CT scan ordered in August 1987 done; (2) was endoscopy performed; and (3) were any GI biopsies obtained? That without the additional military medical information requested, nor further medical advisory was warranted.

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. At the time of his voluntary early separation, the applicant had no medical disqualification under Army medical standards that precluded his enlistment for
3 years in the Army Reserve.

2. The applicant’s military service 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, his enlistment in the Army Reserve on 30 September 1992, one day after his separation, directly contradicts his contention that he believes that he was physically unfit for further military service at the time of separation from active duty.

3. 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.

4. 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 unfitness for Army purposes.

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 service, 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.

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.

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BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC97-07458/AR1999023895
SUFFIX
RECON
DATE BOARDED	19990520
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.