RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          5 October 2004
      DOCKET NUMBER:  AR2004100146


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Larry C. Bergquist            |     |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, in effect, medical discharge or retirement.

2.  The applicant states, in effect, that while serving at Fort Monmouth,
New Jersey between April 1988 and September 1992, he was receiving physical
therapy, seeking medical treatment and taking medications for an ongoing
chronic back injury, for which he had a physical profile of 3.  He further
states that when the Army offered a Voluntary Separation Incentive Program
(VSIP) with a Voluntary Separation Incentive (VSI), he could have elected
to stay through 20 years, but chose to separate with the VSI because of his
medical problems.  He claims he was informed at the time that he could
apply for a medical retirement while still on active duty, or apply for a
service connected disability with the Department of Veterans Affairs (VA)
after leaving the Army.  He elected to take the VSI and applied to the VA
in September 1992.  He states he had no way of knowing or predicting the
seriousness of his spinal and degenerative disc disease injuries at the
time and his condition progressively worsened.  He further indicates that
he has performed some active duty service with his Reserve unit even though
he has maintained his profile and he does not feel he is medically fit to
continue active duty as a Reservist.

3.  The applicant provides the following documents in support of his
application:  Invitational Travel Orders, dated 28 August 2002; Medical
Statement, dated
1 March 2003; and Employer Letter, dated 3 March 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that on 29 September 2002, he was
honorably released from active duty (REFRAD) under the provisions of
paragraph 16-8, Army Regulation 635-200, by reason of Fiscal Year 1992 (FY
92) VSIP-VSI and was authorized to receive annual VSI payments of $7,395.53
for 32 years.

2.  Upon his REFRAD, the applicant transferred to the United States Army
Reserve (USAR) Control Group, St. Louis, Missouri.  On 28 July 1995, he
enlisted in a Troop Program Unit (TPU) of the USAR.

3.  The last report of medical examination (SF 88) on file for the
applicant is dated 20 May 1997.  This document notes the applicant’s lower
back pain in the summary of defects contained in Item 43; however, his
physical profile was recorded as 112111 and his physical category was B.
Based on the results, the examining physician determined the applicant was
medically qualified for retention.
4.  On 12 August 2003, the applicant was transferred from the USAR Control
Group to the Retired Reserve based on being medically disqualified under
the provisions of paragraph 6-2, Army Regulation 140-10.

5.  The applicant provides a VA Rating Decision, dated 10 March 2003, which
confirms his service connected disability rating of 40% for a chronic
lumbar strain, degenerative changes L5-S1 degenerative disc disease was
increased to 60%.  This document also indicates the VA granted the
applicant entitlement to the 100% rate, effective 6 March 2003, because he
was unable to work due to his service connected disability.

6.  Army Regulation 140-10 prescribes policies, responsibilities, and
procedures to assign, attach, detail, remove, or transfer USAR soldiers.
Chapter 6 provides guidance on transfer to and from the Retired Reserve.
It states, in pertinent part, that assignment to the Retired Reserve is
authorized when a member is medically disqualified not as a result of own
misconduct, for retention in an active status or entry on active duty,
regardless of the total years of service completed.

7.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers)
establishes procedures and policies and implements statutory authorities
regarding medical, dental, hospitalization, and disability benefits;
incapacitation compensation; and death benefits; as well as reporting
requirements on these entitlements for Reserve Component (RC) soldiers.
Paragraph 3-2 provides guidance on qualifying for Army disability benefits.
 It states, in pertinent part, that in order to be eligible for a
disability retirement, RC soldiers must be disabled from injury, illness,
or disease incurred while serving in a duty or travel status.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) 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 or her office, grade, rank, or rating.


9.  Chapter 3 of the same regulation provides guidance on presumptions of
fitness.  It states that the mere presence of 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.  Separation by reason of disability requires processing
through the PDES.

10.  Chapter 4 of the same regulation contains guidance on processing
through the PDES, which includes the convening of a Medical Evaluation
Board (MEB) to document a soldier's medical status and duty limitations
insofar as duty is affected by the soldier's status.  If the MEB determines
a soldier does not meet retention standards, the case will be referred to a
Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical
disability equitably for the soldier and the Army.  The PEB investigates
the nature, cause, degree of severity, and probable permanency of the
disability of soldiers whose cases are referred to the board.  It also
evaluates the physical condition of the soldier against the physical
requirements of the soldier's particular office, grade, rank, or rating.
Finally, it makes findings and recommendations required by law to establish
the eligibility of a soldier to be separated or retired because of physical
disability.

11.  Chapter 8 of the disability regulation contains the rules and policies
for disability processing of Reserve Component (RC) soldiers on active
duty.  It states, in pertinent part, that a RC soldier will be referred for
medical processing through the PDES when a commander or other proper
authority believes that soldier is unable to perform the duties of his or
her office, grade, rank, or rating because of physical disability.  It
further stipulates that in order for soldiers of the
RC to be compensated for disabilities incurred while performing duty for 30
days or less, there must be a determination made by the PEB that the
unfitting condition was the proximate result of performing duty.  Proximate
result establishes a casual relationship between the disability and the
required military duty.

12.  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.  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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that he should receive a medical retirement from
the Army and the supporting documentation he provided were carefully
considered.  However, the evidence of record confirms he requested REFRAD
under the provisions of the FY92 VSIP-VSI.  There is no indication he
suffered from a medically disqualifying condition that would have supported
his processing through the Army PDES at the time of his separation from
active duty.  Although his record shows he received treatment for the back
condition in question, there is no indication that this condition rendered
him unfit to perform his military duties at the time of his separation from
active duty.

2.  The record further shows that subsequent to his REFRAD, the applicant
served in the USAR.  An SF 88 on file confirms he underwent a physical
examination in 1997 and was found fit for duty at that time.  There is also
no evidence that suggests he was disabled from an injury, illness, or
disease incurred while he was serving in a duty or travel status while in
the USAR.

3.  The applicant’s military medical records show he was treated for the
back condition for which he ultimately received a disability rating from
the VA while on active duty.  However, his record provides no indication
that this condition rendered him unfit to perform his military duties or
warranted his being processed through the Army PDES prior to his REFRAD.

4.  The VA rating and medical documents provided by the applicant were also
carefully considered.  However, the 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.

5.  Furthermore, the VA can evaluate a veteran throughout his/her 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.
In this case, the applicant is properly being evaluated, treated and
compensated for his service connected back condition by the VA in
accordance with the applicable laws and regulations.

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 this requirement.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_KAN ___  __JTM __  __LCB __  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 for correction of the
records of the individual concerned.




            _KATHLEEN A. NEWMAN_
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004100146                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/09/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2003/08/12                              |
|DISCHARGE AUTHORITY     |AR 140-10                               |
|DISCHARGE REASON        |Retired Reserve                         |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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