MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 08 AUGUST 2002
         DOCKET NUMBER: AR2002066498

         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. Gale J. Thomas		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Lester Echols		Member
Ms. Margaret V. Thompson		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, disability retirement or separation.

APPLICANT STATES: That he reenlisted in June 1999, and a physical examination that was over three years old was used as the basis for his re-enlistment. A medical examination completed at the Louisville VA Hospital determined that he was not qualified for continued service, and granted him a
60 percent disability rating. However, his assignment orders where never amended or revoked so he reported to his unit as scheduled. He was given a retention physical at a medical unit in Rochester, Minnesota which again determined that he was unfit for continued service, it was at that point that he was given the choices of medically retiring from active duty, or from the U.S. Army Reserve. In support of his request the applicant submits copies of his Department of Veterans Affairs compensation claim decision, his November 2000 medical examination, a medical review of his medical examination, a copy of his permanent physical profile, and his notification of medical unfitness for retention which shows his selection of assignment to the Retired Reserve.

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

The applicant enlisted in the U.S. Army Reserve in November 1983. He was ordered to active duty on 1 August 1985, in an Active Guard Reserve (AGR) status, and served on active duty until 15 September 1999.

On 29 June 1999, prior to his discharge from active duty, he re-enlisted in the U.S. Army Reserve for a period of 8 years.

On 15 September 1999, he was honorably discharged from active duty under the provisions of Army Regulation 635-200, chapter 4, for completion of required service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he had 14 years, 1 month and 15 days of active service.

In September 1999, subsequent to his separation from active duty, the Department of Veterans Affairs granted him a combined service connected disability of 60 percent for depression (30%), degenerative joint disease of the lumbar spine (20%), Sinusitis (10%), Asthma (10%), and Hemorrhoid (10%).

On 11 November 2000, a medical examination found the applicant medically disqualified for retention.

On 23 March 2001, the applicant was issued a permanent physical profile for depression, asthma, and back pain.




In May 2001, a medical review concurred with the findings of the applicant’s November 2000 physical examination. The Command Surgeon directed that the applicant’s unit be notified to initiate the appropriate separation action, and to counsel him on his right to a Physical Evaluation Board (PEB), as well as the option to retire, if eligible.

On 17 June 2001, the applicant was notified that he was medically disqualified for continued service under the provisions of Army Regulation 40-501, chapter 3. He was afforded the opportunity to request assignment to the Retired Reserve, assignment to the Retired Reserve with early qualification eligibility to receive pay at age 60, providing he had at least 15 but less than 20 qualifying years of service for retired pay purposes, an honorable discharge from the U.S. Army Reserve, or a review of his non-duty related medical disqualification by a Physical Evaluation Board.

On 15 July 2001, the applicant elected assignment to the Retired Reserve, which was accomplished with an effective date of 17 July 2001.

Army Regulation 635-40 states, in effect, that Reserve Component soldier will be separated from the Reserve when they no longer meet medical retention standards. Such separation will be without benefits if the unfitting condition results from an injury which is due to the intentional misconduct or willful neglect of the individual, if the disability was incurred during a period of unauthorized absence, or if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.

Additionally, Army Regulation 635-40, paragraph 3-2b states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

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.

The National Defense Authorization Act for Fiscal Year 1995 (Public Law
103-337) amended Title 10, United States Code, section 1331a (now codified under section 12731a). The modification allows Reserve component soldiers who are involuntary separated between 23 October 1992 and 31 December 2001 because of medical unfitness to elect transfer to the Retired Reserve for Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service toward Reserve component retirement

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 applicant’s medical records are not available; however, the evidence shows that the applicant was separated from active duty upon completion of required service. There is no evidence in the available records nor did the applicant provide documentation to show that he had a medically unfitting disability at the time of separation which required physical disability processing.
His active duty service was not interrupted by his medical conditions.

2. The subsequent determination that his medical conditions disqualified him from meeting medical retention standards in the Reserve is also not a basis to correct his records to show he was medically retired from active duty in 1999.

3. The fact that the Department of Veterans Affairs (VA), in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes.

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 that requirement.

5. In view of the foregoing, there is no basis for granting the applicant's request.

6. It is unclear to the Board why the applicant did not elect the option of reassignment to the Retired Reserve with early qualification eligibility to receive retired pay at age 60, considering he had at least 15 but less than 20 qualifying years of service for retired pay purposes at the time of his separation. If the applicant wishes to have that issue addressed, he should be advised to contact officials at U.S. Army Reserve Personnel Command (AR-PERCOM) for information concerning the procedures for making that change.
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__ ___LE___ __MVT__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002066498
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020808
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.