MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 November 2001
         DOCKET NUMBER: AR2001060856

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Deborah S. Jacobs		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
Mr. Donald P. Hupman, Jr.		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 release from active duty or his honorable discharge from the U. S. Army Reserve (USAR) be changed to a medical separation.

APPLICANT STATES: That it has been resolved in his favor that a line of duty injury did occur during his active duty service during Operation Desert Storm. Supporting evidence is as listed on the attachment to the DD Form 149.

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

He was born on 11 June 1943. After having had service in the U. S. Marine Corps from 1961 - 1964, he enlisted in the USAR in August 1986. He was promoted to Staff Sergeant, E-6 on 8 January 1990 in military occupational specialty 54B (Chemical Operations Specialist).

On 1 February 1991, the applicant’s unit was ordered to active duty in support of Operation Desert Storm. His active duty physical had noted that he had no specific complaints, that he walked two miles everyday, and that there were no neurological deficits. On 11 March 1991, the applicant apparently injured his right leg during a 2-mile run and sought treatment for a complaint of a pulled hamstring on 19 March 1991. On examination of his right leg, there were no visible signs, no swelling, heat, or redness. It was tender in the mid posterior. The assessment was overuse.

Effective 23 March 1991, the applicant’s unit was relieved from active duty. The applicant was given a Certificate of Release or Discharge from Active Duty, DD Form 214, showing he was honorably released from active duty on this date. He had received a letter of appreciation for this period of active duty which stated in part that his abilities and motivation enhanced the performance of one of the Fort Benning, GA units.

The applicant’s last noncommissioned officer evaluation report (NCOER) was for the period November 1990 – October 1991 when he was rated as a Nuclear, Biological, and Chemical (NBC) Senior Instructor. It shows that his rater gave him three “success” and two “excellence” ratings in the areas of NCO responsibilities and an overall potential for promotion and/or service in positions of greater responsibility of “among the best.” His senior rater rated his overall performance as “successful” (2, with the highest rating a 1).

On 8 March 1992, the applicant completed the Advanced Course for Reserve Component NCOs.

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According to the Department of Veterans Affairs (VA) rating decision, the applicant’s post-service medical records indicated he was first treated for pain in the back with radiation to the right leg in June 1992 with further complaints and treatments throughout 1992.

On 18 July 1992, the applicant reenlisted in the USAR for 6 years.

On 21 December 1992, the applicant voluntarily transferred from a troop program unit to the USAR Control Group (Reinforcement).

On 3 January 1997, the applicant was honorably discharged from the USAR for an unknown reason.

The VA granted the applicant a 10 percent disability rating for degenerative disc disease and spondylosis of the lumbosacral spine with right leg symptoms effective 13 December 1994, increased to 20 percent effective 8 July 1998.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. 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 soldier reasonably may be expected to perform because of his or her office, grade, or rank.

The VA Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.

Title 38, U. S. 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

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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. 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.

2. The evidence of record shows that the applicant was not unfit for duty at the time he was released from active duty in March 1991. He had received a letter of appreciation for the period he was on active duty basically commending his good work. His NCOER for the period ending October 1991 shows that he was capable of performing his duties in an above average manner. In March 1992, he successfully completed the Advanced Course for Reserve Component NCOs.

3. There is insufficient evidence to show that the applicant was unfit for duty at the time he was honorably discharged from the USAR in December 1997. The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Due to the two concepts involved (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual may be found fit to perform those duties he may reasonably be expected to perform because of his office, grade, or rank yet his medical condition may be rated VA as disabling. In the absence of evidence showing the applicant could not perform his military duties during the period after he completed the Advanced Course for Reserve Component NCOs until his discharge in January 1997, the Board presumes he was capable of performing those duties.

4. 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

__dsj___ __eja___ __dph___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060856
SUFFIX
RECON
DATE BOARDED	20011106
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.