MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 18 November 2003
                  DOCKET NUMBER: AR2003087885

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Mark D. Manning		Member
Ms. Barbara J. Ellis		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, that his honorable discharge be changed to a medical discharge based on a rating for service connected disability by the Department of Veterans Affairs (DVA).

APPLICANT STATES: That he was discharged from the Army with a 40 percent DVA disability rating. He states, in effect, that at the time of his release from active duty he had been unable to perform the required duties of the service for a significant period of time. He contends that he had not performed physical training in over two years, that he could not perform any physical labor, and that he was a pilot but was unable to fly for an extended period of time. He goes on to state that he was not selected for command due to potential physical limitations, that he felt he was not competitive for future promotions and, therefore, he exited military service.

In support of his application, he submits a statement regarding his back injury, dated 14 December 2001, wherein he contends that over the past 12 years he experienced a significant work and lifestyle change due to the physical limitations surrounding his back. He states that his first memory of the problem was during football practice at West Point. He goes on to state that he reinjured his back in 1994 and that on three separate occasions in 1997 he injured his back again. He claims that he received a waiver to continue flying and he also received a permanent 2 profile. He further contends that from 1997 to the present, his lifestyle has become even more restrictive due to his injury.

He also provides a DVA Rating Decision, dated 26 July 2002; DVA documentation; limited service medical records; and numerous DVA medical records.

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

In November 1989, while a cadet at the U.S. Military Academy in West Point, New York, the applicant was treated for lower back pain associated with football practice.

The applicant graduated from the Academy and was commissioned a second lieutenant on 29 May 1993. He was promoted to captain effective 1 June 1997 in area of concentration (AOC) 15B (Aviation Combined Arms Operations).

On 3 October 1997, the applicant injured his back after lifting several objects from the trunk of his car. On 18 November 1997, the applicant was issued a permanent L-2 profile for back pain.

The applicant's DA Form 4186 (Medical Recommendation for Flying), dated
30 January 1998, shows he was found fit for duty and was pending a waiver for low back pain.
On 1 March 1999, the applicant underwent a flight physical examination and was found qualified with a physical profile of 111111.

There is no separation physical examination in the available records. However, the applicant's Officer Evaluation Reports (OER) during the period 1 October 1997 through 19 April 2002 show that his rater marked that he maintained an appropriate level of physical fitness and military bearing in Part IV (Performance Evaluation - Professionalism). In addition, his last OER for the period 29 June 2001 to 19 April 2002 shows his performance and potential for promotion was rated "Outstanding Performance, Must Promote." He was also rated "Best Qualified" for promotion potential to the next higher grade. In part Vb, under performance and potential evaluation, the rater stated, in pertinent part, that the applicant's "performance was outstanding during the entire rating period," that he "has demonstrated a superior ability to lead, plan and organize military operations," that "He consistently performed at a more senior level," and "He is an extremely professional and dedicated officer with unlimited potential."

The applicant tendered a request for release from active duty.

On 16 July 2002, the applicant was honorably released from active duty under the provisions of Army Regulation 600-8-24, paragraph 3-5, for miscellaneous/general reasons.

The applicant filed a claim with the DVA for service connected disability for a low back injury and left elbow fracture. On 26 July 2002, the DVA granted service connection for degenerative disc and joint disease of the lumbosacral spine
(40 percent) and fracture of the left ulna (zero percent).

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.

Title 38, United States Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service. The DVA, however, is not required by law to determine medical unfitness for further military service. The DVA, 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 DVA benefits based on an evaluation by that agency.

Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, provides the standards for medical fitness for retention and separation, including retirement. Chapter 7 of this regulation provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):
P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity.

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 a lack of special skills in demand or inability to meet physical standards established for specialized duty such as flying does not, in itself, establish eligibility for disability separation or retirement. 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. When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that a soldier is fit. Application of the rule does not mandate a finding of fit. The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of her or her office, grade or rank.

Department of the Army Pamphlet 611-21 (Military Occupational Classification and Structure) gives procedures and prescribes the method of developing, changing, and controlling officer, warrant officer, and enlisted military occupational classification structure. This regulation provides, in pertinent part, that AOC 15B (Aviation Combined Arms Operations) commands or serves in leadership positions in aviation units. Plans, coordinates, and directs employment of aviation assets as an integral member of the combined arms team. Serves in staff positions, at various levels, which require knowledge of, and training in, the doctrinal and organizational facets of aviation and the other combat arms.

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. The applicant was on active duty from 29 May 1993 to 16 July 2002 and performed duties as a 15B. The available 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. His last OER shows he was best qualified for promotion potential to the next higher grade. Accordingly, the applicant was voluntarily released from active duty for miscellaneous/general reasons, not as the result of a medical condition.

3. The fact that the DVA, in its discretion, 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. An award of a DVA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the DVA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (“service connected”) and affects the individual’s civilian employability. Furthermore, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

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

JNS____ MDM____ BJE_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087885
SUFFIX
RECON
DATE BOARDED	20031118
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20020716
DISCHARGE AUTHORITY	AR 600-8-24 Paragraph 3-5
DISCHARGE REASON	Miscellaneous/general reasons
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.	108.0000
3.
4.
5.
6.