APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement.

APPLICANT STATES:  That the physical evaluation board (PEB) should have evaluated several of his disabilities, which could have changed his disability rating.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered the Army on 16 August 1990, completed training and was assigned to Fort Ord, California.

In April 1991 the applicant injured his right ankle while playing basketball.  He underwent surgery and postoperative physical therapy.  On 21 January 1992 he was given a physical profile of 1 1 3 1 1 1 for his right ankle fracture.  This profile prohibited him from running, marching, and carrying a rucksack.  On 14 March 1991 a Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) determined that the applicant’s medical condition of status post right ankle fracture precluded his satisfactory performance in his MOS in a worldwide environment, but showed evidence of improvement.  The MMRB recommended that he be placed in a 6 month probationary period.  That recommendation was approved on 7 April 1992.

The applicant underwent further surgery some fifteen months after his initial injury.  This surgery was successful and returned him to good cosmetic appearance of his foot with improved function.  However, on 7 October 1992 the applicant was given a 1 1 4 1 1 1 profile for status post right foot nerve injury, ankle fracture.

A 25 November 1992 medical evaluation board (MEB) determined that the applicant had chronic ankle pain, toe pain secondary to right ankle fracture with subsequent posterior tibial nerve compression following open reduction internal fixation; decreased motion of left ankle secondary to the first diagnosis; and decreased motion and strength of large, third, and fourth toes of the right foot secondary to corrective surgery performed for deformity following the first diagnosis.  The MEB recommended that the applicant be referred to a PEB.  The applicant agreed with the MEB findings and recommendation and indicated that he did not desire to remain on active duty.  

On 4 January 1993 a PEB determined that the applicant had a trauma associated right posterior tibial nerve compression with residual limitation of ankle motion and toe deformity and decreased strength, agreeing with the diagnosis and narrative summary of the MEB.  The PEB determined that the applicant was physically unfit to perform the duties in his rank as an infantryman and recommended that the applicant be separated from the Army with a combined disability rating of 20 percent.  On 14 January 1993 the applicant concurred.  The recommendation of the PEB was approved on 
19 January 1993.  

On 17 February 1993 the applicant was discharged for physical disability with severance pay.  He received $4,225.20.  The applicant had 2 years, 6 months, and 2 days of active service.

In October 1993 the VA notified the applicant that he was awarded a 20 percent rating for service connected disability for the injury to his right ankle.  A VA rating decision of 18 July 1994 increased this rating to 30 percent.  A VA rating decision of 16 February 1996 continued this rating at 30 percent.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Title 38, United States Code, sections 310 and 331, permits the VA 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.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

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 discharge for physical disability with a 20 percent disability rating was proper.  His separation with severance pay was in compliance with law and
regulation.  The applicant agreed with the recommendation of the PEB that he should be discharged with a 20 percent disability rating.
     
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 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.  The Board notes that the VA initially awarded the applicant a 20 percent disability rating in October 1993, only increasing that rating in July 1984 to 30 percent. 

4.  An 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.  Furthermore, the VA can evaluate a veteran throughout his 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.
5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request. 

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 the aforementioned requirement.

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

  x       x          x    DENY APPLICATION




						Karl F. Schneider
						Acting Director