MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 14 JANUARY 2003
         DOCKET NUMBER: AR2002073497

         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. Margaret K. Patterson		Chairperson
Ms. Jennifer L. Prater		Member
Ms. Mae M. Bullock		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, physical disability retirement or separation.

APPLICANT STATES: The applicant submits a copy of his 28 August 1998 General Discharge Certificate showing that he was discharged from the Army National Guard and the Reserve of the Army; a copy of his NGB Form 22 (National Guard Bureau Report of Separation and Record of Service); a copy of a 4 August 1998 DD Form 261 (Report of Investigation, Line of Duty and Misconduct Status); and a copy of a 17 July 2000 VA letter informing him that his disability because of chronic lumbar strain had been increased from 10 percent to 40 percent.

EVIDENCE OF RECORD: The applicant's military records are not available. The available records are copies of his two previous applications to this Board, and the letter responses thereto.

On 28 September 1998 the applicant requested that this Board correct his 10 August 1998 DD Form 261 to reflect a determination of “Line of Duty” versus the determination of “Line of Duty-EPTS-Aggravation.” The form was corrected without Board action and the applicant’s request was returned to him (AR1999022817).

On 3 April 2002 the applicant requested that his general discharge be changed to a [physical] disability discharge. He stated that he was discharged from the service because of his failure to meet Army body standards, and provided a list of medical reasons why he did not meet the standards. He stated that he injured his back on 7 June 1998 after receiving notification that he would be separated. Consequently, he was not discharged until 28 August 1998 instead of the projected 31 July 1998 date. He stated that on 22 June 1999 he was notified [by the VA] that he would receive a disability rating of 10 percent because of his chronic lumbar strain. He stated that his disability rating has since been increased to 40 percent (AR2002070315).

The applicant injured his back on 7 June 1998 while lifting and loading boxed equipment. His injury was in line of duty.

On 28 August 1998 he was discharged from the Wisconsin Army National Guard and as a Reserve of the Army. His NGB Form 22 shows that he was discharged because of his failure to meet Army body composition standards.

On 17 July 2000 the VA notified the applicant that his disability rating for chronic lumbar strain was increased from 10 percent to 40 percent. The VA also notified him that it had denied service connection for inguinal hernia and left knee condition.

Army Regulation 635-40, chapter 8, outlines the rules for processing through the disability system soldiers of the Reserve component who are on active duty for a period of less than 30 days or on inactive duty training; and outlines the criteria under which soldiers of the Reserve component, whether or not on extended active duty, apply for continuance in the active Reserve.

Paragraph 8-2 states that soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, etc.

Paragraph 8-6 states that when a commander believes that a soldier not on extended active duty is unable to perform his duties because of physical disability, the commander will refer the soldier for medical evaluation. Paragraph 8-6b states in effect, that the medical treatment facility will forward the medical evaluation board to the soldier’s unit commander for disposition under applicable regulations.

Army Regulation 635-40 provides for medical evaluation boards (MEB), which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status. A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3. If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a Physical Evaluation Board (PEB).

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

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. There is no evidence and the applicant has not provided any, to show that he was physically unfit at the time of his discharge from the Army National Guard in 1998, notwithstanding the disability rating that he has received from the VA. 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.

2. Absent evidence to the contrary, it is presumed that the applicant’s discharge from the Army National Guard was correct and in accordance with appropriate regulations. There is nothing to show that he had a medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

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.

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

__MMP__ __JLP __ __MMB __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073497
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030114
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.