MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 August 2001
         DOCKET NUMBER: AR2001054438

         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. John H. Kern		Chairperson
Mr. Thomas Lanyi		Member
Ms. Paula Mokulis		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, that his honorable discharge be changed to a separation by reason of physical disability.

APPLICANT STATES: In effect, that veterans who receive a 30 percent service connected disability or higher, shortly after discharge, should be entitled to medical retirement. In support of his application he submits a copy of his DD Form 214, a copy of his Department of Veterans Affairs (DVA) Rating Decision, dated 14 July 2000, and a copy of his claim from the DVA, dated 31 July 2000.

COUNSEL CONTENDS: The American Legion, as counsel for the applicant, contends that the applicant completed over 17 years of active duty prior to being discharged due to a reduction force and is requesting that his service record be corrected to show that he was discharged due to medical disability. Counsel also states that the applicant has submitted records from the DVA showing that he was granted service connection for depression, headaches, and joint pain with a combined rating of 40 percent, and with the effective date being the date following his discharge from service. Counsel opines that the applicant’s DD Form 149, in conjunction with the official Army records, amply advance his contentions and substantially reflect the probative facts needed for an equitable review. Counsel requested that the Board’s final decision reflect sound equitable principles consistent in law, regulation, policy, and discretion.

EVIDENCE OF RECORD: The applicant's military records show he enlisted on 28 October 1981 as an aircraft electrician and continued to serve through a series of continuous reenlistments.

Medical evidence provided by the applicant shows that he was seen on sick call on several occasions from May to November 1994 for knee pain.

The applicant was issued a temporary profile on 13 June 1995, for knee and shoulder pain, and was issued a permanent profile on 12 October 1995 for bilateral knee and shoulder pain.

The applicant’s Standard Form 93 (Report of Medical History), dated 27 May 1999, shows that the applicant was seen at the VA Medical Center in Minneapolis, Minnesota for depression, and joint, and chest pain.

The applicant received a separation medical examination on 27 May 1999, and was found qualified for separation with a 111111 physical profile.





On 31 July 1999, he was honorably discharged under the provisions of Army Regulation 635-200, chapter 16, due to reduction in force.

Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. Paragraph 16-8 of this regulation sets forth the requirements for early separation of enlisted personnel due to reduction in force, strength limitations, or budgetary constraints. The service of personnel separated under this paragraph will be characterized as honorable.

After his separation, the applicant filed a claim with the VA for a service connected disability for joint pain (to include knees, ankles, neck, hips, back
and shoulders) as due to undiagnosed illness (claimed as joint pain throughout the body), depression with short term memory loss (claimed as psychological problems), muscle cramps, chest pain, and headaches as due to undiagnosed illness. On 14 July 2001, he was granted a 30 percent rating for depression (claimed as psychological problems), a 10 percent rating for headaches as due to undiagnosed illness, and a 10 percent rating for joint pain (to include knees, ankle, neck, hips, back and shoulders) as due to undiagnosed illness (claimed as joint pain throughout the body), and was granted a combined rating of 40 percent for his service connected conditions.

In the processing of this case, a staff advisory opinion was obtained from the Department of the Army Review Boards Agency (DARBA) Medical Advisor. The medical advisor indicated that the applicant was requesting a change in his discharge status to a medical retirement based on his 40 percent disability rating from the DVA for depression, headaches, and joint pain (multiple). The medical advisor also indicated that the applicant was evaluated during the period from May to November 1994 while on sick call and by Orthopedics for knee pain. He was diagnosed with Patellofemoral Pain Syndrome and treated with physical therapy modalities, anti-inflammatory medications, and temporary profiles. A P3L profile was issued in June 1995, with only minimal physical restrictions. A shoulder X-ray in June 1995, noted degenerative changes in the right acromioclavicular joint. No restrictions were noted in the medical record, no Medical Evaluation Board (MEB) was requested by any treating physician, nor was one indicated under the provisions of AR 40-501. The medical advisor stated that the Department of Defense (DOD) and the DVA use the same schedule for disability ratings, and that their rating philosophy and application are completely different. The DVA will assign ratings to any service-connected ailment, if applicable criteria are met, upon application. The Army Physical Disability System will rate disabilities that are service incurred or aggravated that terminate a military career. The various ratings that the applicant received from the DVA were for any and all service-connected impairments, whether or not they were disabling or career-ending. Therefore, there is currently no medical reason to change the applicant’s discharge status.

On 14 May 2001, the applicant was afforded an opportunity to submit matters in rebuttal to this opinion. As of the date of the Board’s review of the applicant’s case, he had not responded.

Army Regulation 40-501, at paragraph 4-3a, provides, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated for reasons other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties 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 10, United States Code, chapter 61, provides for the disability retirement or separation of a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

Title 10, United States Code, section 1201, provides for the physical disability retirement of an unfit member who has at least 20 years of service or a disability rating of at least 30 percent.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.

Title 38, United States Code, sections 310 and 331, permits the DVA to award compensation for disabilities which were incurred in or aggravated by active military service. The DVA, however, is not required by law to determine medical unfitness 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 concerns.

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. The Board notes the applicant’s contention that veterans who receive a 30 percent service connected disability or higher, shortly after discharge, should be entitled to medical retirement. The Board also notes that the applicant was seen on sick call on several occasions from May to November 1994 for knee pain, was issued a temporary profile for bilateral knee and shoulder pain, and was seen at the VA Medical Center for depression, joint and chest pain. The Board further notes that the applicant was found qualified for separation with a 111111 physical profile which indicated that he was qualified for separation and that there is no evidence in the available records to show that an MEB was considered or requested by competent medical authorities prior to his discharge.

2. The applicant has failed to show evidence, or provide evidence which shows that he was diagnosed with any medical condition incurred, while entitled to receive basic pay, which was so severe as to render the applicant medically unfit for retention on active duty. Accordingly, the applicant was separated for reasons other than physical disability.

3. The Board notes that the applicant received a combined rating of 40 percent from the DVA for his service connected conditions. An award of a DVA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the DVA, 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 DVA 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 and assign an appropriate disability rating before he or she can be medically retired or separated.

4. 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.











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

__jk___ ___tl_____ ___pm____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001054438
SUFFIX
RECON
DATE BOARDED	20010823
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1999073
DISCHARGE AUTHORITY	AR 635-200 C, 16-8
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 177
2.
3.
4.
5.
6.