MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 August 2001
         DOCKET NUMBER: AR2001057711

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Christopher J. Prosser		Member
Ms. Linda D. Simmons		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 her retired rank be changed to the rank and pay grade of lieutenant colonel (LTC)/05.

APPLICANT STATES: In effect, that she should have been retired in the rank of LTC. She states that her desire was to serve more than 20 years in the Army but her medical condition prohibited her from meeting her service obligations. She states her health problems and record of service as a LTC supports a favorable consideration of her request to be retired in the rank of LTC. In support of her application, she submits a letter from the Department of Veterans Affairs (VA).

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

The applicant was commissioned a second lieutenant on 4 July 1982. On
31 July 2000, she was honorably released from active duty (REFRAD), for the purpose of retirement, after completing 20 years, 5 months, and 5 days of active military service.

The Report of Separation From Active Duty (DD Form 214), issued to and signed by the applicant on the date of her separation, confirms that at the time of her separation she held the rank of LTC, a rank to which she was promoted on
1 May 1999.

The DD Form 214 shows that during her active duty tenure she earned the following awards: Meritorious Service Medal (5^th Award); Army Commendation Medal; Army Achievement Medal (2^nd Award); Armed Forces Reserve Medal; National Defense Service Medal (1^st OLC); Armed Forces Expeditionary Medal; and Expert Field Medical Badge.

A review of her file and officer evaluation reports shows that she consistently received above center of mass ratings, with no indication that she possessed any medical conditions that impaired her ability to perform her military duties.

The applicant’s retirement orders 068-0146, dated 8 March 2000, authorized her voluntary retirement for length of service, under the provisions of Title 10 of the United States Code, section 3911. It also directed her placement on the Retired List in the rank and pay grade of major/0-4, under the provisions of Title 10 of the United States Code, section 3961, which provides the legal authority for the assignment of commissioned officer retired grades.

The letter from the VA submitted by the applicant confirms she was awarded a disability rating of 80 percent based on several service connected medical problems.

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Title 10, United States Code, section 1370 (d) provides that in order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years.

Title 10, United States Code, section 3911, states that Regular or Reserve commissioned officers may retire as commissioned officers if they have at least 20 years of service, 10 years of which have been active duty service as a commissioned officer.

Title 10, United States Code, Section 3964, provides that a retired enlisted member or warrant officer of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he served on active duty satisfactorily, (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily) as determined by the Secretary of the Army. The law provides no provisions for advancement on the Retired List for individuals retired in commissioned officer grades.

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 Board notes the applicant’s contention that her medical condition impaired her ability to complete her service obligation. However, a review of the file reveals no medical conditions existed at the time of her retirement that impaired her ability to perform her military duties to the extent it would have precluded her continued service in an active status.

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2. The evidence of record confirms the applicant requested and was granted a voluntary retirement based on length of service. There is no evidence of record that suggests she possessed a medical condition that disqualified her from further service at the time of her retirement processing.

3. The VA is not required by law to determine medical unfitness for further military service when awarding compensation, while military medical authorities are required to make this determination during a member’s processing for retirement. 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. Therefore, the Board finds the VA disability rating granted the applicant subsequent to her retirement alone is not a sufficient basis for relief.

4. Statutory provisions provides that in order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years.

5. The evidence of record confirms the applicant did not serve in the rank of LTC for three years prior to her retirement. Therefore, her being placed on the Retired List in the rank and pay grade of major/04 was appropriate and accomplished in accordance with the applicable statutory provisions of the law.

6. The Board wishes to congratulate and thank the applicant for her outstanding service to her country. However, her current health problems and her outstanding service do not provide a sufficient legal or regulatory basis for her advancement on the Retired List. Statutory provisions limit advancement on the Retired List to enlisted and warrant officer members when their active duty service and time on the Retired List equal 30 years. The law provides no provisions for the advancement of members retired in commissioned officer grades.

7. 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

___RVO__ __CJP__ __LDS __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001057711
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/08/30
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.	129.04
2.
3.
4.
5.
6.