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Decision Text

ARMY | BCMR | CY1990-1993 | 9107784
Original file (9107784.rtf) Auto-classification: Denied

APPLICANT REQUESTS : Reconsideration of his previous request to correct his records by showing that his 20 percent disability rating should be 40 percent.

 APPLICANT STATES : That he was rated by the VA upon discharge and awarded 40 percent for his disabilities. He has attempted to have his records corrected to reflect the VA rating since 1988. The benefits of the military retiree ID card is what he is seeking not the increase in monetary benefits.

 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 23 September 1992 (COPY ATTACHED).

In support of his application the applicant submits his own statement explaining that he was told he must wait until he was medically discharged to rebut his disability rating. That since he was sent home pending the disability rating he had no way to find out the final rating.

The Board’s original consideration included and it is reiterated here that the United States Army Physical Disability Agency reviewed the applicant’s records upon appeal for an increase of the disability percentage from an informal Physical Evaluation Board (PEB) 20 July 1992. The Agency concluded the applicant was properly separated with severance pay for disability rated at 20 percent.

 DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The applicant’s contention that he could not appeal his Army disability rating until after he was discharge is contradicted by evidence of record that he was advised of his right to demand a formal hearing of his case on 11 July 1988 and he chose to waive that right and his rebuttal to the informal PEB was considered.

2. The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

3. The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities. His separation with severance pay was in compliance with law and regulation.

4. The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating.

5. 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 employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment. Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

6. 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.

7. 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

________ ________ ________ DENY APPLICATION




                                                      Loren G. Harrell
                                                       Director

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