MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 September 2002
         DOCKET NUMBER: AR2002074126

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Barr		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: That his separation be changed to a medical retirement with a 100 percent disability rating.

APPLICANT STATES: That due to the injuries he sustained while in the military he should have received a medical discharge with a 100 percent disability rating. He provides his Department of Veterans Affairs (VA) disability claim; a VA rating action; his service medical records and some pre-service medical records; several articles on medical conditions; numerous documents that appear to be court cases concerning VA disability rating actions not pertaining to the applicant; and his Certificate of Release or Discharge from Active Duty, DD Form 214, as supporting evidence.

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

He had a history of having had a rash on his neck and scalp since 1984. In February 1987, while active with weight lifting, he was treated for some right hip pain and popping with associated pain. He enlisted in the Regular Army on 1 November 1990. He completed basic training and advanced individual training and was awarded military occupational specialty 92Y (Unit Supply Specialist).

On 27 March 1991, the applicant was treated for a right ankle injury. No evidence of significant arthritic or inflammatory change was found, there was soft tissue swelling around the ankle with no radiographic evidence of a fracture or other significant abnormality.

On 15 January 1992, the applicant was treated for a left elbow injury. Routine views of the elbow demonstrated no evidence of fracture, dislocation, or joint effusion. The joint space was intact with no evidence of intra-articular loose bodies.

The applicant completed a separation physical on 22 March 1994. On his Report of Medical History, SF 93, he noted that he was presently in good health.

The applicant's Personnel Qualification Record, DA Form 2A, dated 15 June 1994 shows his physical profile code to be 111121 (the applicant wore glasses).

On 31 October 1994, the applicant was released from active duty after completing his required active service.

A VA document (Statement of the Case) dated 29 January 2000 shows that the VA initially gave the applicant a 10 percent disability rating for acne keloidalis nuchae with folliculitis and later increased the rating to 30 percent.

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A VA document (Hearing Officer Decision) dated 19 September 2000 noted that the applicant had a 12 by 6 cm and a 12 by 8 cm keloidal scar on his posterior scalp. It was noted that there was obvious cosmetic disfigurement when viewed posteriorly but the only limitation of function was cosmetic.

A 25 September 2000 VA physical examination noted that all the applicant's systems were normal except for the scar on his scalp, pain in the right hip, knees that pop and have pain, and sore ankles. He was diagnosed with teeth loss; status post wart excision; status post sprained left ankle, recovered; strained left elbow; pseudofolliculitis barbae, because he does have problems on his chin and jaw; keloid folliculitis of his scalp, large defect, cosmetically disfiguring; early arthritis of the right hip; and chondromalacia of both knees.

A VA document date-stamped 13 December 2001 shows that the applicant apparently claimed disability for a number of conditions other than the keloidal scars on his scalp. These conditions include osteomyelitis, Cushing's Syndrome and abnormal weight gain, migraine, hip and thigh conditions, knee and leg conditions, ankle and foot conditions, shoulder and arm conditions, sacroiliac injury and lumbosacral strain, photophobia, sinusitis, eczema, and phlebitis. It cannot be determined from the provided documents if the VA has yet made a rating decision on these conditions.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

The VA Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition.

Army Regulation 40-501 governs standards of medical fitness for enlistment, retention, and separation. In pertinent part, it states that "PULHES" stands for Physical capacity or stamina; Upper extremities; Lower extremities; Hearing and

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ears; Eyes; and Psychiatric. An individual having a numerical designation of "1"
under all factors is considered to possess a high level of medical fitness. A physical profile designator of "2" under any or all factors indicates that an individual possesses some medical condition or physical defect which may require some activity limitations.

Title 38, U. S. 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.

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. 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 this requirement.

2. There is no evidence to show the applicant was ever unfit to perform his military duties as a Unit Supply Specialist. There is no evidence to show he ever had a physical profile (temporary or permanent) and his DA Form 2A showed that in October 1994 he had a PULHES of 111121. He indicated on an SF 93 at his separation physical that he was in good health.

3. Any rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the VA as disabling yet not be considered by the Army to render the individual unfit.

4. 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

__FNE __ __ BJE _ __WDB __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074126
SUFFIX
RECON
DATE BOARDED	2002/09/10
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.01
2.
3.
4.
5.
6.