RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 June 2005
      DOCKET NUMBER:  AR20040008253


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Ms. Karen Y. Fletcher             |     |Member               |
|     |Mr. Kenneth L. Wright             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his request for a medical
retirement.

2.  The applicant states that, yes, he declined a separation physical but
only because his First Sergeant told him the "Mission Boxes" would suffer
if he took any time off for a physical or any other out-processing.  His
First Sergeant also told him that it would be better if he took his
physical at the Department of Veterans Affairs (DVA); otherwise, the Army
would extend his enlistment for six months to a year or more while waiting
for a medical board.  The First Sergeant also told him that the Army would
medically retire him based on the findings of the DVA.

3.  The applicant provides a DVA Rating Decision dated 20 January 2005; an
 11 March 2005 letter from Orthopedic Specialists; and a 17 March 2005
document from Orthopedic Specialists.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003098444 on 20 July 2004.

2.  All the documents provided by the applicant are new evidence which will
be considered by the Board.

3.  The applicant served in the Regular Army and the Army National Guard
prior to entering the U. S. Army Reserve on 31 August 1987.  On 25 November
1991, he was promoted to Sergeant First Class (SFC), E-7 in military
occupational specialty (MOS) 71D (Legal Clerk).  At the time of his
promotion he was awarded a secondary MOS of 71L (Administrative Specialist)
and an additional MOS of 75Z (Personnel Senior Sergeant).  On 20 July 1994,
he was awarded a primary MOS of 91B (Medical Noncommissioned Officer) with
a secondary MOS of 71D and additional MOSs of 75Z and 71L.

4.  The applicant's Noncommissioned Officer Evaluation Report (NCOER) for
the period ending September 1994 shows his principal duty title was First
Sergeant.

5.  On 19 June 1996, the applicant entered active duty in the Active Guard
Reserve (AGR) program.  On 1 August 1996, he was awarded a primary MOS of
79R (Recruiter), a secondary MOS of 91B and an additional MOS of 71D.  He
performed recruiter duties while in an AGR status.
6.  The applicant's NCOER for the period ending November 1998 shows he had
been given a physical profile in October 1998 but his profile did not
hinder the performance of his duties.  His rater's comments included,
"earned Army achievement medal for exemplary achievement as a USAR
recruiter" and "demonstrated abilities and leadership attributes earned the
position of assistant station commander."

7.  The applicant requested voluntary separation from his AGR tour and his
request was approved on 12 February 1999.

8.  The applicant's NCOER for the period ending April 1999 shows he had a
physical profile but his profile did not hinder his ability to perform the
mission  His rater's comments included, "clearly demonstrated the ability
to hold positions of increased complexity and greater responsibility."

9.  On 18 June 1999, the applicant was released from active duty and the
AGR program and was transferred to the U. S. Army Reserve Control Group
(Reinforcement).  Orders dated 10 September 1999 transferred him to the
Retired Reserve.

10.  DVA Rating Decisions dated 17 January 2002, 18 December 2002,
    5 December 2003, and 2 February 2004 confirmed the applicant had been
granted service connection for chondromalacia of the right and left knee
       (10 percent each); renal calculi, kidney stones (10 percent); aortic
aneurysm      (0 percent); and asthma (10 percent).

11.  A DVA Rating Decision dated 20 January 2005 shows the applicant's
disability rating was temporarily increased to 100 percent effective 29
December 2003, changed to 50 percent effective 1 February 2004, and
increased to          60 percent effective 14 October 2004.  On 23 March
2005, he had an anterior cervical fusion.

12.  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 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.
 In pertinent part, 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, rank, or rating.

13.  The Veterans Administration 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
DVA, the Army must first determine whether or not a Soldier is fit to
reasonably perform the duties of his office, grade, rank or rating.

14.  Title 38, U. S. Code, sections 1110 and 1131, 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.

DISCUSSION AND CONCLUSIONS:

1.  The rating action by the DVA does not necessarily demonstrate an error
or injustice on the part of the Army.  The DVA, operating under its own
policies and regulations, assigns disability ratings as it sees fit.  The
DVA 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 as disabling by the DVA even though he was
not unfit for military service.

2.  The applicant's last two NCOERs showed his profile did not hinder the
performance of his duties.  In his next to last NCOER, his rater comments
included, "demonstrated abilities and leadership attributes earned the
position of assistant station commander."  In his last NCOER, submitted
after he requested release from the AGR program, rater comments included,
"clearly demonstrated the ability to hold positions of increased complexity
and greater responsibility."  These comments clearly showed that he was not
unfit for military service.  Therefore, there is an insufficient basis on
which to change his separation to a medical retirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __kyf___  __klw___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AR2003098444 dated 20 July 2004.




            __William D. Powers___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040008253                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050607                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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