MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 August 2001
         DOCKET NUMBER: AR2001051144

         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. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Thomas B. Redfern, III		Member
Ms. Regan K. Smith		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 his length-of-service retirement be changed to a medical retirement.

APPLICANT STATES: That he was never given a retirement physical before he left active duty and all of his VA-rated disabilities were the direct result of combat wounds which caused his unemployability with a rating of over 30 percent.

COUNSEL CONTENDS: Counsel makes no additional contention.

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

After having had several periods of prior service, both active and inactive, in an enlisted and in a commissioned officer status, he entered active duty as a warrant officer on 14 September 1973. His military occupational specialty was 951A (Criminal Investigator).

The applicant’s Officer Evaluation Report (OER) for the period 2 May 1977 through 1 May 1978 shows he was given the highest ratings in all 16 areas of professional attributes and was given a “maximum” rating overall. Comments included “…has performed his assigned duties in a highly outstanding and professional manner.”

The applicant’s last OER, for the period 2 May 1978 through 30 September 1978,
shows he was given the highest ratings in all 16 areas of professional attributes and was given a “maximum” rating overall. Comments included “…performed his duties in an exceptionally outstanding manner,”…”a truly professional and dedicated officer with unlimited potential,” and “…’s retirement will be a great loss to the United States Army.”

The applicant retired on 1 October 1978 after completing over 20 years of active Federal service. Over his career his awards included the Combat Infantryman Badge, the Purple Heart, and the Soldier’s Medal.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. It states that the mere presence of 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 soldier reasonably may be expected to perform because of his or her office, grade, or rank. It states 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. When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that a soldier is fit. Application of the rule does not mandate a finding of fit. The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

Title 38, U. S. Code, 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. 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 VA benefits based on an evaluation by that agency.

In the processing of this case, an advisory opinion was obtained from the Medical Advisor to the Army Review Boards Agency. That office noted that there was insufficient military medical documentation to substantiate the applicant’s contentions.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He responded by recapping in detail his military, particularly his combat, service. He stated that the dates and events could be confirmed by reference to operational records. He again stated that he was never properly afforded a retirement physical or he would have been retired for medical disability due to wounds received in combat. He amended his application to ask that his record be corrected by supplementation to set forth the foregoing factual assertions concerning times, places, and incidents of his 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, 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 this requirement.

2. The Board notes the applicant’s combat service and injuries; however, he went on to successfully complete 20 years of active service. His last two OERs show that he received the “maximum” ratings and was always able to perform his assigned duties in a highly outstanding manner. Since there is no evidence to show that he was medically unfit to perform his military duties, the Presumption of Fitness rule has not been overcome.

3. The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

4. An individual’s personnel records and military operational records are designed to record different sets of data. Since the operational records detailing the applicant’s military service are already correct, there is no need for the Board to take any action on his amended request.

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

__mkp___ _tbr____ __rks___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001051144
SUFFIX
RECON
DATE BOARDED	20010807
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.