MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 November 2002
         DOCKET NUMBER: AR2002072600

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Roger W. Able		Member
Mr. Hubert O. Fry, 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 he be reinstated to active duty for the purpose of being evaluated for disability retirement through the Disability Evaluation System (DES); and that his records be placed before a Special Selection Board (SSB) for consideration for promotion to lieutenant colonel (LTC).

APPLICANT STATES: In effect, that he was forced to retire without receiving a medical evaluation. He claims that in order for a military medical examination to be valid it must be signed by an authorized military physician, and he has enclosed a copy of his Report of Medical Examination (SF 88),which was not signed by a physician. He further claims that block 77 of the enclosed physical examination indicates that he was not qualified for retirement. Block 74 shows that he was diagnosed with spondylolysis, hearing loss, and onchomycosis, and therefore, he should have been referred to a Physical Evaluation Board (PEB). Instead the government forced him to retire and as a result, the benefits he receives are much less than had he been medically retired. He also contends that because he was forced to retire on 30 April 1999, he was removed from the LTC promotion board considered list, and he now asks that he be considered for promotion by a SSB. In addition, he requests that he be provided all back pay and allowances that were denied him back to the date he was forcibly retired, and that if he should he be selected for promotion by the SSB, he asks that he be given the appropriate date of rank and be provided all back pay due as a result of the promotion. In support of his application, he provides extensive military medical records reviewed by the Department of Veterans Affairs (DVA), and a rating decision from that agency.

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

On 30 April 1999, the applicant was released from active duty (REFRAD), for the purpose of retirement, after completing 20 yrs, 2 months, and 2 days of creditable active military service. There is a properly constituted separation document (DD Form 214) on file that was authenticated by the applicant with his signature in Item 21 (Signature of Member Being Separated). This document confirms that the applicant was separated under the provisions of paragraph
6- 14c, Army Regulation 635-200, by reason of sufficient service for retirement.

The record contains no indication that the applicant was physically unfit to perform his military duties at the time of his separation or that he had been referred to a Medical Evaluation Board (MEB) for a determination of medical fitness to perform the duties of his grade and specialty based on an existing medical condition or limiting medical profile.

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The SF 88 provided by the applicant did list spondylolysis, hearing loss, and onchomycosis in block 74 (Summary of Defects). However, it gave no indication that any of these conditions made his physically unable to perform the military duties of his office and grade, or that prohibited his retention on active duty or further service. In addition, block 76 awarded him a PULHES physical profile of 112111, which would indicate that he was fully capable of performing the duties of his specialty and grade at that time. Block 77 contains check marks in both the ”Is Qualified For” and the “Is Not Qualified” boxes, and it is unclear what the intent of these markings were. Further, there is a printed name entered in block 79 (Typed or Printed Name of Physician) and a corresponding signature.

The applicant has provided extensive medical records that verify that he suffered from the conditions he cites, and that he was subsequently assigned a disability rating for these conditions by the DVA.

Army Regulation 600-8-24 prescribes the functions for officer transfers from active duty to the Reserve Component and discharges for all officers on active duty for 30 days or more. Section II contains guidance on voluntary retirements and paragraph 6-14c provides the authority for the voluntary retirement of Regular Army or United States Army Reserve commissioned officers at 20 years of active federal service.

Army Regulation 40-501, paragraph 2-2b, as amended, 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. 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.

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.

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 Board carefully considered the applicant’s contentions and reviewed the medical documentation he provided. However, it finds he has provided insufficient evidence to show that he should have been medically retired by reason of physical disability or that he should be reconsidered for promotion because he was forced to retire.

2. The evidence of record does not contain the specific facts and circumstances surrounding the applicant’s REFRAD for the purpose of retirement. However, it does contain a properly constituted DD Form 214 that the applicant authenticated with his signature, thereby verifying that the information contained therein was correct at the time. This document confirms that he voluntarily retired under the provisions of paragraph 6-14c, Army Regulation 600-8-24, and the Board presumes government regularity in the applicant’s retirement processing.

3. By regulation, 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.

4. Notwithstanding the administrative inconsistencies in the applicant’s last physical examination form, SF 88, neither the evidence of record nor the independent evidence provided by the applicant is sufficiently clear and convincing to overcome the regulatory presumption of fitness cited in the preceding paragraph.

5. The Board also considered the disability rating assigned the applicant by the DVA, and it does not argue with the validity of the medical findings used to grant this rating. However, this factor is not considered determinate in this case. The DVA bases it rating decisions on its own policies and regulations, and compensation is awarded based solely on an existing medical condition that reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, since the 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 DVA benefits based on an evaluation by that agency.

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6. In view of the facts of this case, the Board finds insufficient evidence to support reinstating the applicant on active duty for medical processing. Given this, the Board also concludes that the applicant is not entitled to promotion reconsideration to LTC by a SSB.

7. 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 and counsel have failed to submit evidence that would satisfy this requirement.

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

_ _SAC _ __RWA_ ___HOF__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072600
SUFFIX
RECON
DATE BOARDED	2002/11/26
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1999/04/30
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 181	108.0400
2.
3.
4.
5.
6.