MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 19 AUGUST 2003
         DOCKET NUMBER: AR2003084804

         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:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret V. Thompson		Member
Mr. John T. Meixell		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. He also requests that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show that he completed course AR-1606-0181 (Initial Rotor Wing Aviator Common Core) course.

APPLICANT STATES: That his separation code on his DD Form 214 does not reflect his character of service. Although he did not complete the course, he requests that the Board consider why he was not able to do so. In a 30 December 2002 response to this agency's request for his Army or Department of Veterans Affairs' medical records, the applicant stated that the majority of the damage was not caused by the Army, but was aggravated by his Army service. He stated that his initial problems started in the Marine Corps and have been determined to be service connected.

He states that his discharge was improper because he was injured and should not have been running during a physical fitness test because of his profile. All of his injuries were found to be service connected, leading to his discharge. His discharge was for physical reasons, not for academic reasons. His ratings from the VA should warrant a Medical Evaluation Board (MEB).

He states that his DD Form 214 was not annotated to show that he completed the above-mentioned course. This omission was a punitive measure because he was physically unable to complete the course leading to award of a 153A specialty. He states that AR-1606-0181 represents the completion of the primary and instrument training, both of which he finished. Fort Rucker sent his grade book; however, the record of his flight hours was sent to St. Louis.

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

The applicant served on active duty in the Marine Corps from 1991 to 1997. He was released from active duty in the rank of sergeant with an honorable characterization of service on 25 August 1997. He served in the Oklahoma Army National Guard from 15 September 1997 to 14 September 1999.

On 21 June 2000 he enlisted in the Army for three years with an enlistment commitment for warrant officer flight training. A 16 February 2000 report of medical examination indicates that he was medically qualified for enlistment with a physical profile serial of 1 1 1 1 1 1. He was 19 pounds overweight, but within the body fat standards mandated by the Army. A 28 February 2000 report of medical examination shows that the applicant was medically qualified for flight training.

The applicant was assigned to Fort Rucker, Alabama for training. He completed the six-week warrant officer candidate course at Fort Rucker and was discharged on 20 September 2000 in order to accept an appointment as a warrant officer.
The available medical records that the applicant submitted with his initial request to this Board, indicate that he was treated for knee pain on four occasions while at Fort Rucker. On 30 May 2002 the applicant received a permanent P2 profile for chronic bilateral knee pain. The profile prohibited him from performing the two-mile run in the Army Physical Fitness Test. He could perform all functional activities and aerobic conditioning exercises, except unlimited running. He could run at his own pace and distance.

On 23 May 2002 the commander of the Army Aviation Center at Fort Rucker was notified that the applicant was eliminated from the IERW course, Class 01-03, due to two consecutive physical fitness test failures.

In a 10 July 2002 memorandum to the commanding general of the Army Aviation Center, the Staff Judge Advocate recommended that officer approve the memorandum releasing the applicant from active duty and which states that he could not be considered for future aviation training.

The applicant was discharged on 15 August 2002 under the provisions of Army Regulation 600-8-24, paragraph 2-37, for failure to complete a course of instruction. His DD Form 214 shows "NONE" in item 14, Military Education (Course Title, number of weeks and months and year completed).

The applicant's officer record brief (ORB), dated 29 August 2001, shows completion of a warrant officer orientation and warrant officer entry course, both in the year 2000.

With his request, the applicant submits a class grade sheet showing his grades in various subjects of a course titled, "Initial Entry Rotary Wing Avr (Common Core), Delivery Group: A, Phase: 0, Course ID/Class: 2C-1ERW (Comm Core) (CT) 2001 Class 003."

A copy of an apparent VA document shows that agency had awarded the applicant a 10 percent service connected disability rating for degenerative disc disease, a 10 percent rating for tendonitis to his right wrist, a 10 percent rating for chondromalacia patella for each of both knees, a zero percent rating for a right ankle sprain, and a zero percent rating for residual injury scrotum with right epididymitis.

Army Regulation 600-8-24 provides for the transfer and discharge of officers. Paragraph 2-37 provides for the discharge of warrant officers, grade W1, who were eliminated from warrant officer basic course due to his or her resignation from the course or for failure to meet the conduct, moral, physical, professional, academic, or leadership standards.

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.

Department of Defense Instruction 1332.38 states in pertinent part that a service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating.

Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for medical evaluation boards, 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 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.

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, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment. Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension. By law, a veteran can only be compensated once for a disability. If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

Army Regulation 635-5 provides instructions for the completion of the DD Form 214, and states in pertinent part, that from the ORB list formal in-service training courses successfully completed during the period of service covered by the DD Form 214. Include title, length in weeks, and year completed. This information is to assist the soldier in job placement and counseling; therefore, do not list training courses for combat skills. When in doubt, refer to the course description in DA Pamphlet 351-4 to determine its usefulness to the soldier after transitioning from the Army.

DA Pamphlet 351-4 shows that the initial entry rotary wing aviator (common core) course, number 2C-IERW (COMM CORE), is a 20-week course that provides the student with basic rotary wing operator skills and knowledge for qualification in the UH-1 aircraft system. Training includes physical and mental skills and knowledge objectives for basic rotary-wing flight maneuvers, emergency procedures, instrument flight, and safety factors.

DA Pamphlet 600-11 provides for the career management of warrant officers. Warrant officer training has five levels that provide warrant officers with performance-based certification and qualification training. The first level is the warrant officer candidate school (WOCS). Graduates are appointed to warrant officer, W1. The next level is the warrant officer basic course (WOBC). This is proponent training that provides MOS (military occupational specialty) specific instruction and certification following WOCS and is characterized by an increased emphasis on leadership. Assault/Utility helicopter aviators (MOS 153A) must successfully complete the aviation warrant officer basic course.

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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 applicant's discharge for failure to complete the warrant officer basic course was in accordance with the regulation. There is no evidence, and the applicant has not provided any to show that he was physically unfit at the time of his discharge in August 2002. The fact that he twice failed a physical fitness test did not entitle him to physical disability processing nor indicate that he was physically unfit for retention. 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. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. 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.

3. 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.

4. Notwithstanding the applicant's contention, and the copy of the class grade sheet that he submits, he did not complete the IERW aviator (common core) course. The evidence clearly shows that he was eliminated from that course due to his physical fitness test failures. The information shown on the applicant's ORB, e.g., completion of warrant Officer entry course, refers to the warrant officer candidate course that he completed in the year 2000. Consequently, he is not entitled to have his DD Form 214 corrected to show completion of that course.

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

6. 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.

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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

__FNE__ __MVT __ __JTM___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084804
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030819
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.