MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 February 2002
         DOCKET NUMBER: AR2001064272

         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:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Ms. Celia L. Adolphi		Member
Mr. John T. Meixell		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: That his discharge be changed to a physical disability retirement.

APPLICANT STATES: That he was offered neither severance pay nor retirement regarding his service-connected disabilities. His service medical records show numerous complaints of chest, back, and neck pains. They show he suffered several falls on his upper back in 1972, a vehicle accident in 1976, and a lower back injury with physical therapy sessions in 1981 prior to his discharge. He is currently rated as 100 percent disabled by the Department of Veterans Affairs (VA). He provides copies of his service medical records, his VA medical records, a 6 January 2000 letter from the VA certifying he has a service-connected disability evaluated at 100 percent, a copy of his VA-status military identification card, and his Certificate of Release or Discharge from Active Duty, DD Form 214, as supporting evidence.

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

He enlisted in the Regular Army on 12 December 1968 and had continuous service until his separation.

The applicant’s service medical records confirm that he was treated numerous times for complaints of chest, back, and neck pain.

The applicant completed the Primary Leadership Course on 11 May 1979. His Senior Enlisted Evaluation Report (SEER) for the period ending July 1980 shows he was rated as “ranks with the very best” in the category of “Is physically fit, as required, for MOS/grade (Physical Condition).” Comments included “…is a highly qualified NCO who has the potential to complete any mission assigned…” and “…personal appearance and physical condition serve as an example for others to strive for.” His SEER for the period ending July 1981 shows he was rated as “ranks with the very best” in the category of “Is physically fit, as required, for MOS/grade (Physical Condition).” Comments were mostly negative but were related to his ineffectiveness as a noncommissioned officer and his inability to separate his marital problems from his duty requirements rather than an inability to perform due to medical problems.

On 30 July 1981, the applicant was discharged upon the completion of his required service.

On 5 September 1984, the applicant enlisted in the Army National Guard (ARNG). He completed a statement in lieu of current medical examination. He indicated that he had been treated for lower back (problems) from March 1984 to the present but he believed that he was now medically qualified to perform satisfactory military service.

On 26 February 1986, the applicant requested separation from the ARNG. He cited idleness, pay problems, and problems with his rank as the reasons for his request. On 25 April 1986, the applicant was discharged from the ARNG with an honorable characterization of service.

On 10 July 1992, the applicant was seen by the VA for the purpose of a compensation and pension examination. It was noted at this time that he had no rated disabilities on file. A VA consultation progress note dated 2 May 1997 indicated the applicant had a 40 percent service-connected disability rating and apparently was being considered for a 20 percent increase. On an unknown date, the VA increased his disability rating to 100 percent.

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 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.

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 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. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, 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’s medical condition may be rated as disabling by the VA even though he was determined to be physically fit by the Army.

3. The evidence of record shows that the applicant was physically fit to perform his duties at the time of his separation from active duty. Although he was being treated for a back condition at the time he enlisted in the ARNG, he had indicated that he believed that he was medically qualified to perform satisfactory military service. He requested discharge from the ARNG two years later but his request did not indicate that he believed himself to be physically unfit for duty. On the contrary, one of the reasons he requested discharge was his idleness.

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

__rvo___ __cla___ __jtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064272
SUFFIX
RECON
DATE BOARDED	20020228
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.