RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 October 2005
      DOCKET NUMBER:  AR20050000141


      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. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. LaVerne V. Berry              |     |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 earlier request to change
his separation to a medical retirement.

2.  The applicant states, in a 9 November 2004 letter to the Department of
the Army Office of the Inspector General (DAIG), he is in complete
disagreement with the recent findings of the Board.  His over-39 physical
examination, which occurred on 7 May 2003, was not mentioned.  He believes
his case should be reviewed and evaluated based on the entirety of his 18-
year Army career which began in 1976 and ended in 1992.  His medical
condition with regards to his lower back resulted in frequent medical
treatment, physical therapy on a regular basis, and "profound" limitations
on his duties as a Soldier.

3.  The applicant states his condition resulted in his having a "non-
deployable status" during the Gulf War and his having a permanent P3
physical profile.  The Board stated his "last reported medical examination
(SF 88), and that my physical profile was recorded as 112111," was not an
accurate statement.  A copy of his P3 profile is currently maintained in
his Active Army medical records, now located at the Department of Veterans
Affairs (DVA) Regional Office in Washington, DC.  It is also located in his
field personnel records.  He elected the Voluntary Separation Incentive
(VSI) program but he should have been processed by a Medical Evaluation
Board (MEB).

4.  The applicant provides the 8 documents listed as "Enclosures/Evidence
Presented" plus his U. S. Army Reserve separation orders.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not review the applicant's case within the time frame given.

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
AR2004100146 on    5 October 2004.

2.  The documents provided by the applicant (except for enclosure number 8,
his employer's letter dated 3 March 2003, which was previously considered)
are new evidence which will be considered by the ABCMR.

3.  After having had prior service from January 1975 to January 1979 as an
infantryman, the applicant enlisted in the Regular Army on 18 April 1979.
He completed advanced individual training and was awarded military
occupational specialty 71L (Administrative Specialist).

4.  On 9 January 1992, the applicant requested early separation under the
VSI program.  His request was approved, he was released from active duty on
       29 September 1992, and he was transferred to the U. S. Army Reserve
Control Group (Reinforcement) after completing a total of 16 years, 4
months, and        16 days of creditable active service and a total of 16
years, 7 months, and 21 of creditable service for pay.

5.  The applicant received a noncommissioned officer evaluation report
(NCOER) for the period April 1994 through November 1994 while he was
assigned to the 314th Support Center, 7th Army Reserve Command as a
Nuclear, Biological, Radiological NCO.  In Part IV, he received all
"Success" ratings in the five areas of NCO responsibilities.  Part IVc
(Physical Fitness and Military Bearing) showed he passed the Army Physical
Fitness Test (APFT) in July 1994 and the rater commented, "Maintains
sufficient physical stamina."

6.  The applicant received an NCOER for the period December 1994 through
September 1995 while he was assigned to the 314th Support Center, 7th Army
Reserve Command as an Administrative Specialist.  In Part IV, he received
all "Success" ratings in the five areas of NCO responsibilities.  Part IVc
(Physical Fitness and Military Bearing) showed he passed the APFT in March
1995.

7.  A Standard Form 88 (Report of Medical Examination) dated 20 May 1997
noted 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.  The examining physician determined the applicant
was medically qualified for retention.

8.  The applicant provided a DD Form 2808 (Report of Medical Examination)
dated 7 May 2003.  This document listed, as significant or disqualifying
defects in item 76, (1) chronic back pain; (2) anxiety; and (3) urinary
frequency.  He was determined to be not qualified for service.

9.  Effective 12 August 2003, the applicant was released from the U. S.
Army Control Group (Reinforcement) and assigned to the Retired Reserve.  A
Retirement Points Summary shows that, during the 11 years he was in the U.
S. Army Reserve, he completed two qualifying years for a Reserve
retirement.

10.  The applicant provided a 14 February 2005 letter from the DVA
indicating he is receiving compensation benefits for service-connected
disability(ies) determined to be permanent and total in nature.  He
provided an 8 March 2005 letter from the Disabled American Veterans
indicating the DVA had recently granted service connection for chronic left
rhomboid and trapezius spasm and strain with an evaluation of 10 percent
effective 23 April 2001.  He provided a DVA rating decision which stated
the same.

11.  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.


12.  Army Regulation 635-40, in pertinent part, states 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.  It also states that, although the
ability of a Soldier to reasonably perform his or her duties in all
geographic locations under all conceivable circumstances is a key to
maintaining an effective and fit force, this criterion (world-wide
deployability) will not serve as the sole basis for a finding of unfitness.

13.  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 VA, 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
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 DVA as disabling while he was found
fit by the Army.

2.  The applicant contended the ABCMR's statement in his previous Record of
Proceedings that his "last reported medical examination (SF 88), and that
my physical profile was recorded as 112111," was not an accurate statement.
 However, it appears that was the only available medical examination
available to the previous Board.  It was also the only available medical
examination available to this current Board until he provided a copy of his
7 May 2003 medical examination.  There is no copy of a P3 profile in his
service ("field") personnel records.  If one is available in his Active
Army medical records then, as he noted, it is now located at the DVA
Regional Office in Washington, DC and he did not provide it with his
application.

3.  Determining physical fitness for retention or separation is not
determined by evaluating an entire 18-year Army career.  Physical fitness
for retention or separation is determined by whether or not the Soldier is
physically fit to perform his duties.

4.  There is no evidence of record and the applicant provides none to show
he should have been processed by an MEB prior to his separation in
September 1992.  In accordance with regulatory guidance, nondeployability
will not serve as the sole basis for a finding of unfitness.  Having a
physical profile alone is not a basis for a finding of unfitness.

5.  The applicant's last active Army NCOER is not available; however, it is
noted that two NCOERs subsequent to his separation in September 1992, for
the periods ending November 1994 and September 1995, show he was fully
capable of passing the APFT and performing all his assigned duties.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__clg___  __rtd___  __lvb___  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 AR2004100146 dated 5 October 2004.




            __Curtis L. Greenway__
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050000141                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051006                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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