MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 11 February 2003
         DOCKET NUMBER: AR2002076354

         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. Samuel A. Crumpler		Chairperson
Ms. Regan K. Smith		Member
Mr. Antonio Uribe		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 to change his discharge for personality disorder to a medical discharge.

APPLICANT STATES: That he has only recently gotten his head clear enough to understand what happened to him.

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 19 April 2001 (Docket Number AR2000049872).

As new evidence the applicant provides:

1. A Department of Veterans Affairs (VA) Rating Decision dated 13 January 1998 which shows he was awarded a 10 percent disability rating for low back pain, a 10 percent disability rating for epididymitis (inflammation of the elongated cordlike structure along the posterior border of the testis), a 10 percent disability rating for headaches, and a 10 percent disability rating for a status post left knee injury.

2. A VA Rating Decision dated 23 February 2000 which shows he was awarded an additional 10 percent disability rating for tinnitus due to acoustic trauma and a 70 percent disability rating for adjustment disorder and major depression. His disability rating for headaches was increased to 50 percent.

3. His original DD Form 149 in which he stated that he performed all his duties exceptionally even with his injuries.

4. His current DD Form 149.

5. His Honorable Discharge Certificate.

6. A photograph of himself.

7. An undated letter from the State of Michigan Department of Civil Service showing he passed the Entry Level Law Enforcement examination.

8. An 8 January 1999 letter from a clinical psychologist stating that test results revealed no findings of a personality disorder or any other forms of psychological dysfunction.

9. A 5 June 1998 letter from Joann F___ stating she has known the applicant for a number of years and has found him to be a man of impeccable character.

10. A 24 October 1997 letter from Chief Warrant Officer Four M___ stating he had the pleasure of working with the applicant for about 18 months. During that time, the applicant possessed the attributes and qualities required and expected of a leader.

11. An undated letter from Sergeant Major S___ recommending the applicant attend the Supply Warrant Officer course.

12. A 17 November 1998 statement from Mr. P___ in support of the applicant’s VA claim stating it was a blessing to have known such a sound and stable young man for the past 6 years.

13. An 11 April 1997 character reference from Lieutenant Colonel D___ stating he knew the applicant from June 1995 through March 1997.

14. An undated (but made in support of the applicant’s claim for VA benefits), 3-page statement from Sergeant First Class M___ stating that he was the applicant’s supervisor at Fort Bragg, NC for about 2 years. He stated the applicant was a self-starter who always sought positive results in every task assigned to him. The applicant was frequently required to handle logistical issues well outside the expertise of a supply clerk assigned to a very mobile airborne organization. On numerous occasions, the applicant was called upon to perform tasks normally associated with senior staff and each time he accomplished the mission superbly. He believed that without a doubt the applicant could handle any job available to him.

15. A 26 October 1994 letter from Command Sergeant Major S___, Subject: Commendation for Physical Fitness Performance.

16. An 8 December 1994 Certificate of Achievement.

17. An 11 November 1998 statement from Mr. G___ in support of the applicant’s VA claim stating he knew the applicant in high school and he was an outstanding young man.

18. The applicant’s Noncommissioned Officer Evaluation Report (NCOER) for the period May 1994 through January 1995 which rated him as a “success” in all areas.

19. An undated letter from Sergeant Fist Class L___ who states he knew the applicant at Fort Bragg. He could say the applicant performed his duties as they were required of him to do.

20. A 3 June 1998 letter from his high school Anatomy/Physiology class teacher.
21. An undated letter entitled “REFLECTIONS,” apparently from a VA psychologist. That individual noted that he saw no compelling evidence of mental disorder in the applicant despite the prior medical record entries of both psychotic and affective disorders on Axis I.

22. A 1 December 1998 letter from Debra L___, who was a shift supervisor over the applicant when he worked at Pinkerton Security for 2 months.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, or rank. It states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

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.

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 evidence of record shows that competent military medical authorities diagnosed the applicant with a personality disorder. He had an opportunity to rebut that diagnosis when separation action was initiated, either with the statements of support he has provided with his current application or similar ones, yet he elected not to submit a statement in his own behalf.

2. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury. It is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. The applicant himself contended in his original application that he performed all his duties exceptionally even with his injuries. His letters of support from those with whom he worked at Fort Bragg support his contention that he was able to perform his duties. Therefore, there is no evidence to show he was eligible to enter the physical disability processing system.

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3. The 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 even though the Army did not find him to be unfit.

4. 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.

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

__SAC__ __RKS _ __ AU __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076354
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/02/11
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.