MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 January 2003
	DOCKET NUMBER:   AR2002076109

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Patrick H. McGarthy, Jr.		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)

APPLICANT REQUESTS:  Reconsideration of his request for a physical disability retirement.

APPLICANT STATES:  That the Department of Veterans Affairs (VA) increased his disability rating from 20 percent to 30 percent.  Thirty percent was sought in his physical evaluation board (PEB) rebuttal.  He believes it is unjust to deny him a medical retirement based upon one member's opinion when that opinion was contrary to the opinion of his surgeon.  His surgeon concluded that only scar tissue could be removed and that further surgery would not improve the permanently disabling condition of his hand.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 16 May 2002 (docket number AR2001063539).

The applicant suffered an injury to his right hand on 25 November 1952.  He was subsequently assigned to Valley Forge Army Hospital where he appeared before a medical evaluation board (MEB) on 15 June 1953 and a PEB on 19 June 1953.  The PEB determined he was physically unfit to perform his duties; however, the president, a medical member of the PEB, dissented.  The applicant rebutted.  On 29 June 1953, the Adjutant General responded to his rebuttal by stating that the evidence of record failed to establish a sufficient degree of disability upon which a finding of physical unfitness could be made.  

The applicant rebutted the Adjutant General's letter; however, the Adjutant General determined, on 16 July 1953, that he was physically fit for active military service.

On 25 July 1953, the applicant was honorably released from active duty not by reason of a physical disability.

The applicant provides a VA Rating Decision showing his wound of the right hand with ulnar nerve damage and limitation of motion of the middle, ring, and little fingers, which was 20 percent disabling, was increased to 30 percent effective 30 March 2001.

The applicant also provides 18 pages of his VA Connecticut medical records, the last two pages of which concern his hand condition.  The records (a radiographic report) note that the applicant's right hand revealed an old fracture at the head and neck of the right fourth proximal phalanx and degenerative changes in the third and fourth proximal interphalangeal joints.

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 evidence provided by the applicant shows that the VA increased his disability rating for his hand injury to 30 percent in March 2001, almost 50 years after he was injured.

2.  The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, 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 VA as disabling even though the Army found him to be fit for duty. 

3.  The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

4.  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

__KAN__  __GJW  _  __PHM __  DENY APPLICATION

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

INDEX

CASE ID	AR2002076109	
SUFFIX		
RECON		
DATE BOARDED	2003/01/23	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	

REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.