MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 21 AUGUST 2001
         DOCKET NUMBER: AR2001057014

         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. James E. Vick		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Barr		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: Physical disability retirement.

APPLICANT STATES: That he contracted HIV while in the service. He filed for service connected disability for HIV within two months of discharge. He is receiving a 30 percent disability rating from the VA. The rate started on 7 March 2000. He states that his claim was initially denied, however, it was ultimately approved after an eight year process.

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

The applicant enlisted in the Army Reserve for six years on 23 December 1983. He completed active duty for training on 2 June 1984. On 22 February 1985 he enlisted in the Regular Army for four years. He was assigned to a signal company at Fort Lewis, Washington, served one year in Korea, and was assigned to Fort Polk, Louisiana in November 1987. He reenlisted for four years on 1 November 1988 and in June 1989 was assigned to a signal battalion in Germany.

A 24 January 1991 document shows that the applicant received a medical examination on 24 January 1991, and that his physical profile serial was 1 1 1 1 1 1. There were no medical conditions or physical defects noted.

The applicant requested early separation from the Army and his request was approved on 25 October 1991. He was discharged on 10 December 1991, under the provisions of Army Regulation 635-200, chapter 5, for the convenience of the government. He had 6 years, 9 months, and 19 days of service.

A 12 January 1998 VA medical report indicates that the applicant was diagnosed as HIV positive in April 1992. That report indicates that the applicant had admitted that he was a homosexual. The report shows that the applicant stated that prior to his discharge from the Army he was apparently HIV negative with a HIV screening test in September 1991, which was corroborated in his chart. The report stated that the applicant was admittedly homosexual and engaged in unprotected sex. The examining physician opined that the applicant was likely HIV positive while still in the military, and most likely became infected with HIV prior to his discharge, however, after his negative HIV screen in September 1991. The physician stated, however, that could not be proven. The doctor went on to say that it takes a person initially infected with the HIV virus from 4 to 12 weeks for the virus actually to cause an acute HIV syndrome, which is very similar to a mononucleosis type reaction. The doctor stated that the applicant could have been infected while in the military, or between 4 and 12 weeks prior to his positive HIV screening in April 1997 (sic). He stated that there was no 100 percent way to prove whether or not he was infected in or out of the military.

On 22 January 1998 the VA denied service connection for AIDS, stating that the condition neither occurred in nor was caused by service.

On 5 June 1998, upon appeal, the VA reversed the previous decision, stating that the overwhelming preponderance of evidence supported the applicant’s claim, and that although HIV infection was not demonstrated in service, the opinion of the VA examiner that it probably had its onset in service had not been rebutted by any medical authority. Service connection for AIDS was granted.

In a 7 March 2000 decision by the Board of Veterans’ Appeal, that board noted that the June 1998 rating decision assigned a 10 percent disability rating for the applicant’s HIV-related illness. The board found that the evidence warranted an initial 30 percent evaluation and granted him a 30 percent disability rating.

Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status. A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3. If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

Army Regulation 635-40, paragraph 3-2b states in pertinent part 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.

That paragraph goes on to say that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his 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 38, United States 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.

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 himself requested early separation from the Army. His request was approved. His continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

2. 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 Department of the Army purposes.

3. The VA 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. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. Consequently, due to the two concepts involved, the applicant'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 him for VA benefits based on an evaluation by that agency.

4. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.


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

__JEV __ __BJE __ __WDB__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001057014
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010821
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.	177
3.
4.
5.
6.