MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 March 1999
         DOCKET NUMBER: AC97-09297
AR1998014403

         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. Michael L. Engle		Analyst

The following members, a quorum, were present:

Ms. Celia L Adolphi		Chairperson
Mr. Van B. Cunningham		Member
Mr. Curtis L. Greenway		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: That he be granted a medical retirement.

APPLICANT STATES: That the Army should have rated him with at least a 90 percent disability at the time of his separation from the service. He states that the physical evaluation board (PEB) and the “appeal board” were not properly informed and should be corrected.

In support of his application, he has provided a four-page statement, along with assorted medical records, notes, and Department of Veterans Affairs (VA) rating decision.

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

He enlisted in the United States Air Force (USAF) on 17 June 1966 for 4 years. He was honorably released from extended active duty in the rank of sergeant
( E-4) on 16 April 1970, completing 3 years and 10 months of creditable active service. He served in the USAF Reserve from April 1970 until his discharge in May 1972. The applicant enlisted in the California Army National Guard (ARNG) and served as an enlisted soldier from February 1984 to July 1990, attaining the rank of sergeant first class (E-7).

On 16 July 1990 the applicant was appointed as a warrant officer one in the California ARNG for duty as a counterintelligence technician (351BO).

On 27 June 1992 the applicant collapsed during the last portion of the 2-mile run event of his Army physical fitness test. He was hospitalized and diagnosed with hypertension.

On 9 February 1994 a medical evaluation board (MEB) convened to evaluate the applicant’s medical condition. It found that the applicant suffered from obstructive sleep apnea, recurrent headaches, memory loss, recurrent chest pains, peripheral neuropathy, mild esophagitis, and a history of reactive airway disease. The MEB recommended that the applicant be referred to a physical evaluation board (PEB).

On 10 March 1994 an Informal PEB convened to consider the applicant’s medical condition. It determined that the records provided insufficient evidence that the applicant had physical impairments that precluded the satisfactory performance of duty by a soldier of his grade and military occupational specialty. Accordingly, it found him to be fit for active duty. The applicant did not concur, appealed the decision and requested a formal hearing.

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On 11 April 1994 the applicant’s appeal of the Informal PEB was denied because no new or additional evidence was provided for the board to consider. It was noted that had the board found him unfit, the finding would have been one of EPTS (existed prior to service), normal progression, not permanently aggravated by military service, separate without benefits.

On 3 May 1994 a Formal PEB convened and again found the applicant fit for duty. The PEB president filed a minority report stating that the applicant had a history of essential hypertension (EPTS) and recommended that he be found unfit for military duty and separated without benefits.

On 13 June 1994 the United States Army Physical Disability Agency (USAPDA) modified the recommendation of the PEB. The USAPDA found the applicant unfit for military duty and rated his essential hypertension and sleep apnea each at 10 percent disabling. The USAPDA changed the applicant’s disposition to separation with severance pay with a 20-percent disability rating.

On 21 July 1994 the applicant was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) under the provisions of Army Regulation 635-40, for a permanent medical disability. He completed 8 years and 6 days of creditable active service and 15 years, 5 months and 14 days of total service for pay.

On 6 June 1995 the VA made a rating decision, awarding the applicant service connection, for hypertensive heart-renal disease, obstructive sleep apnea and reactive airways disease, status post pneumonia, hiatal hernia with reflux esophagitis, irritable bowel syndrome and diverticulosis, and dementia, residual of transient ischemic attack and/or anaphylactic shock, competent. He was given a combined 50 percent disability rating.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the USAPDA. It opined that the applicant had not offered any substantial new medical evidence which would warrant a change of the PEB findings and recommended that the applicant’s military records remain unchanged.

On 10 July 1998 the applicant was afforded the opportunity to respond to the
above-mentioned advisory opinion. As of this date a response has not been received by the Board.

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Title 10, United States Code (U.S.C.), section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Title 38, U.S.C., sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, 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.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant’s medical condition was evaluated by an MEB, an Informal PEB and a Formal PEB all of which found him fit for duty at the time of his separation. The USAPDA modified the PEB findings, awarding the applicant a 20-percent disability rating with entitlement to disability severance pay.

2. An award of a higher VA rating does not establish entitlement to medical retirement from the Army. The Army must find that a service member is physically unfit to reasonably perform his or her duties and must assign a disability rating of at least 30 percent before he or she can be medically retired.

3. Disability retirement was precluded since the applicant had completed less than 20 years of service and received a disability rating of less than 30 percent.

4. The applicant has not provided any evidence supporting his contention that the PEB or the USAPDA was not properly informed of his medical condition.

5. The applicant has not provided any substantiating evidence to warrant an increase in his disability rating.

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

____X____ ____X____ ____X____ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC97-09297/AR1998014403
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	19990311
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19940721
DISCHARGE AUTHORITY	AR 635-40
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.