MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 19 SEPTEMBER 2002
         DOCKET NUMBER: AR2002073302

         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. Joann H. Langston		Chairperson
Ms. Melinda M. Darby		Member
Mr. Ronald E. Blakely		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: Physical disability retirement or separation.

APPLICANT STATES: In effect, that he has a service connected disability. He was young [at the time of his separation] and did not understand. It was never explained to him. He was never given a separation physical at the time of his release from active duty.

EVIDENCE OF RECORD: The applicant's military records are not available to the Board. Information herein was obtained from alternate sources.

The applicant entered on active duty on 27 December 1967. The applicant’s medical records (obtained from the Department of Veterans Affairs) shows that he was treated on 25 March 1970 for a dislocation to the third finger of his left hand, and that it was an accident that occurred in a karate fight.

A 26 March 1970 DA Form 3349 (Medical Condition – Physical Profile Record) shows that he was returned to duty with a physical profile serial of T-3 because of an open dislocation to the third finger of his left hand. That profile indicated he was to return in April 1970 for a reexamination.

The applicant’s condition was evaluated on 14 October 1970 prior to his release from active duty. The examining physician indicated that he had full range of motion of his finger, and that the joint was somewhat knotty, but not tender. He had a normal cartilage reaction after his injury.

A 12 November 1970 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1.

The applicant was discharged on 18 December 1970. He had 2 years, 11 months, and 22 days of service.

A Veterans Administration (VA) report of medical examination for disability evaluation dated 29 January 1971 shows that the applicant stated that he had dislocated the index finger of his left hand in March 1969 in Nellingen, Germany. He stated that he had stiffness and tightness in his finger and was in pain.

On 24 February 1971 the VA awarded the applicant a zero percent service connected disability rating for residuals because of dislocation to his left middle finger, proximal interphalangeal joint with gross thickening.

On 8 September 2001 the VA awarded the applicant a 10 percent rating because of residuals, dislocated left middle finger, effective 20 February 2001.

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.

Army Regulation 40-501, 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.

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 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. Although the applicant’s medical records do show that he injured the middle finger of his left hand in March 1970, those 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. Furthermore, the applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

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, and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

5. The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation. The applicant has not submitted any probative medical evidence to the contrary.

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. 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

__JHL __ __MMD __ __REB __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073302
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020917
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.