MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 21 MAY 2002
         DOCKET NUMBER: AR2002067077

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Thomas Lanyi		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 request for physical disability retirement or discharge.

APPLICANT STATES: That his mental status should have resulted in a medical discharge.

COUNSEL CONTENDS: That at the apex of the applicant’s problems he did receive a recommendation from a doctor that the applicant was eligible for discharge because of his psychiatric condition. He states that his superiors did not adequately observe the applicant’s problems. He states that the incidents which caused the applicant to received nonjudicial punishment under Article 15, UCMJ are irrelevant to the applicant’s endeavors, and in effect, the medications that the applicant was taking had some bearing on his behavior. Counsel provides a synopsis of the applicant’s problems, stating that the applicant was exposed to hostile fire and other hazards while in Vietnam, that he was administered a drug for his nerves while home on leave, and that he should never have been allowed to volunteer for a second tour of duty in Vietnam, considering his condition. He was uncomfortable during his second tour of duty, and felt that he was not accepted within his unit. He had to make visits to a doctor, but his superiors were not aware of his problems, insinuating that he was a malingerer. His suicidal attempt indicates that he was not normal. While at the 8^th Field Hospital he received high doses of Thorazine and kept sedated. The evidence shows that he had an emotional unstable personality, chronic, moderate, manifested by anxiety (barbiturate dependence). The diagnosis that he had difficulty with officers and noncommissioned officers and that he had excessive visits to sick call, was a misinterpretation of medical events. The diagnosis that the applicant had a personality disorder is unjust. The applicant should have been diagnosed with a psychoneurotic disorder. The applicant also had post traumatic stress disorder, a residual of his experiences in Vietnam. The records have omitted facts concerning the applicant’s recommendation for a medical discharge. The Board made an error by stating that the applicant’s physical examination prior to his discharge cleared the way for the discharge proceedings. Examinations prior to the applicant’s military service did not indicate that the applicant had a personality disorder.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 7 August 2001 (AR2001056900).

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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Army Regulation 40-501, then in effect, 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. That regulation also states that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Army Regulation 635-40, then in effect, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active 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. He was on active duty from 27 December 1966 to 15 July 1970. Notwithstanding counsel’s arguments, the applicant’s medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty. At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation. Accordingly, the applicant was separated from active duty for reasons other than physical disability.

2. The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation. Neither the applicant nor counsel has submitted any probative medical evidence to the contrary.

3. The fact that the 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. The award of VA compensation does not mandate disability retirement or separation from the Army. The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation. The VA is not required to determine fitness for duty at the time of separation. The Army must find a member physically unfit before he can be medically retired or separated.

5. The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

6. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

7. 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.

8. 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

__JLP __ __BJE _ __TL____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067077
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020521
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.	177
3.
4.
5.
6.