MEMORANDUM OF CONSIDERATION


         IN THE CASE OF: 
                 

         BOARD DATE: 1 November 2001
         DOCKET NUMBER: AR2001059047


         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. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Arthur A. Omartian		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)

APPLICANT REQUESTS: Reconsideration of his previous application to correct his records by changing the reason for his separation to physical disability retirement.

APPLICANT STATES: In a 19 June 2001 letter to a member of Congress, the applicant discusses the difficulty of locating his medical records. He attaches an unsigned letter from a sergeant first class (SFC) to the effect that, when the SFC worked with him, the applicant had physical conditions that precluded physical training and that when the applicant returned from Walter Reed Army Medical Center he was still incapable of physical activity. The applicant also encloses copies of the physical disability processing guidance and an extract of Army Regulation 40-501 wherein he has highlighted various passages that he feels are pertinent.

In another letter, dated 8 August 2001, to the same member of Congress he states that he has tried to locate members of his former command but has been largely unsuccessful. His chain of command advised him to file a claim against the government for the damage done to his body and his family. He relates that he was able to succeed as a soldier only because his wife worked so hard to help him. He forwards copies of certificates and a letter of appreciation, which his wife received. He encloses copies of his May 1993 and March 1995 noncommissioned office evaluation reports (NCOERs) to demonstrate that he was on a physical profile for years. He also submits a copy of a 17 August 1995 letter from the Office of the Judge Advocate General indicating that his claim for $7 million had been rejected.

In a 12 August 2001 letter to the Congressman the applicant complains that this “Board wants to say that their standards are different from the Veterans Affairs.”

He submits a letter from his wife who describes his ailments in great detail.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case (AR2000040964) on 8 May 2001.

The applicant’s submissions are new evidence and argument that requires Board consideration.

The letter from his wife describes his past and present ailments in great detail.

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The applicant’s NCOER for the period ending 10 March 1995 shows that his rater marked him as successful/meets standards in all areas and a bullet comment Part IV.c notes “soldier profile does not hinder duty performance.” His rater ranked his overall potential as “Among the Best.” His senior rater marked him in the top blocks for overall performance and overall potential.

He was found fit in a separation medical examination on 20 March 1995.

The applicant received the Army Commendation Medal “For exceptionally meritorious service” for the period 1 October 1992 to 15 June 1995.

He was discharged under the Early Release Program-Special Separation Benefit on 19 June 1995.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-1, provides that the mere presence of an 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.

Army Regulation 40-501, chapter 7 (Physical Profiling) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors: P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which MAY require certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity. Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. Even the numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

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To make a profile serial more informative, two modifiers are used: "P" (permanent) and "T" (temporary). The "T" modifier indicates that the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity. In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition.

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 fact that the applicant was on profile for several years did not require that he be processed for physical disability separation.

2. Although the applicant insists that he was unable to perform his duties, his last NCOER and the award of the Army Commendation Medal demonstrate that he did, in fact, perform those duties very well.

3. The Army and the Department of Veterans Affairs do have two different standards. The VA can and does rate any condition which was incurred or aggravated during the term of service if it impacts on the veteran’s social or industrial adjustment. The Army may rate only those conditions that preclude the individual from performing assigned duties. The fact that the VA has awarded the applicant a disability rating that is not in consonance with the Army's physically fit rating, but is within the policies of that agency, does not mean that either rating is erroneous. The VA rating does not establish physical unfitness, nor the degree thereof, for Department of the Army purposes. Each department is bound to operate within its own rules, regulations, and policies.

4. Only those conditions that permanently degrade a soldier’s ability to perform duty are ratable by a physical evaluation board (PEB). This panel specifically agrees with the advisory opinion and the original panel of this Board. Had the applicant’s case been referred to a PEB, he would have been found fit for duty.

5. The applicant’s service was not interrupted by his health problems. He was performing his assigned duties at the time he voluntarily requested separation and he has not presented evidence sufficient to overcome the presumption of fitness.

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6. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__WTM__ __AAO__ __CLG__ DENY APPLICATION




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

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INDEX

CASE ID	AR2001059047
SUFFIX
RECON
DATE BOARDED	20011101
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.	108.04
2.
3.
4.
5.
6.