MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 25 OCTOBER 2001
         DOCKET NUMBER: AR2001060714

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Ronald E. Blakely		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: Disability separation or retirement.

APPLICANT STATES: In effect, that he was diagnosed with HIV (Human Immunodeficiency Virus) in September 1997 and was reassigned from the “AIDS/HIV unit” at Brooke Army Medical Center to the 65^th ARCOM (Army Reserve Command) in Puerto Rico. He states that he was not permitted to reenlist and his “command” did not process his request for a “medical review board.” He indicates he did not have a separation physical examination. The applicant states that his “HIV has been classified as AIDS now” and he is “progressively getting worse.” The VA has awarded him a 70 percent disability rating “that is due to go up.” In support of his request he submits a copy of a statement from the VA confirming his entitlement to a 70 percent disability rating which was awarded in May 2001.

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

He entered active duty on 9 April 1985 and was promoted to pay grade E-6 in July 1993. According to item 5 (Overseas Service), on his DA Form 2-1 (Personnel Qualification Record), he was assigned to Panama in January 1995.

On 28 February 1997 the applicant reenlisted for a period of 2 years, which established his ETS (Expiration Term of Service) date as 27 February 1999.

The last performance evaluation report, contained in his OMPF (Official Military Personnel File), was completed in November 1997 and covered the period January through October 1997. The report indicated the applicant was a successful soldier, that he “was physically fit” and that he “maintained a high state of readiness.” He passed an APFT (Army Physical Fitness Test) in July 1997.

According to an entry on his DA Form 2A (Automated Personnel Qualification Record), his last PCS (Permanent Change of Station) occurred in October 1997. His reporting date to the 65^th ARCOM is reflected as 29 October 1997. The form also indicated the applicant had a physical profile of 1-1-1-1-1-1 and a physical category code of A. The form was prepared on 8 February 1999.

On 27 February 1999, the applicant’s scheduled ETS date, he was discharged with an honorable characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates that he received “half involuntary separation pay” in the amount of $16683.00 and that he was separated in pay grade E-6. The narrative reason for his separation is recorded as “completion of required active service” and his SPD (Separation Program Designator) Code is JBK. The applicant was “not available to sign” the separation document.

According to the VA statement, submitted in support of his request, the applicant was awarded a 70 percent disability rating by the VA in May 2001. The statement does not, however, indicate the basis for the disability rating.

Army Regulation 635-5-1 states that SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. SPD Code JBK applies to individuals who are “ineligible for, barred from, or otherwise denied reenlistment who are separated on completion of enlistment.”

Department of the Army Circular 635-92-1 establishes the provisions for awarding non-disability separation pay. It notes that soldiers who are denied retention as a result of a Department of the Army or local bar to reenlistment are entitled to half separation pay.

Army Regulation 600-110, which establishes the policy, procedures, and guidance for soldiers infected with HIV, states that HIV-infected enlisted soldiers who meet medical retention standards of Army Regulation 40-501 are eligible to reenlist, if otherwise qualified.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

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

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. Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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. There is no evidence, and the applicant has not provided any, which indicates that he had any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

2. The evidence indicates the applicant may have been denied reenlistment as a result of a bar to reenlistment. This conclusion is supported by the SPD code reflected on his separation document and the fact that he was awarded half separation pay.

3. Notwithstanding the above conclusions, a rating action by the VA does not necessarily demonstrate any error or injustice by the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its reason or authority for separation.

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

__RJW__ __KAN __ __REB __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060714
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011025
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.
3.
4.
5.
6.