MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:        
	 


	BOARD DATE:            25 November 1998
	DOCKET NUMBER:   AC95-01533

	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.




	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:  In effect, that his 27 June 1989 discharge be voided and that he be Retired by reason of physical disability.

APPLICANT STATES:  That he should have been medically retired with full benefits at the time he was honorably discharged by reason of physical disability with severance pay because the VA has awarded him a 40% disability rating for the same disability that the Army deemed to be 10% disabling.  

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

The applicant enlisted in the Navy on 22 August 1972 and served until he was honorably discharged on 20 October 1972 due to erroneous enlistment and a physical disability that existed prior to entry into the service.

The applicant initially enlisted in the Regular Army on 18 April 1980 and served until he was honorably discharged on the expiration of his term of service on 18 April 1983.

He again enlisted on 14 April 1987 for a period of 3 years, training as a cavalry scout, and assignment to Europe.  Upon completion of his training he was transferred to Germany.

On 1 September 1988, he appeared before a Military Occupational Specialty (MOS)/Medical Retention Board which opined that his medical condition prevented him from performing the full range of physical tasks required of his MOS in a worldwide field environment.  The board recommended that he appear before a Medical Evaluation Board (MEB) and/or a Physical Evaluation Board (PEB).

On 14 March 1989 a MEB determined that the applicant’s condition (Eczema, nummular, severe and chronic) existed prior to entry into the service (EPTS) and referred him to a PEB.

On 31 March 1989 a PEB concurred with the findings of the MEB and recommended that the applicant be separated from the service with entitlement to military benefits.  The findings of the PEB were referred to the applicant for his concurrence or nonconcurrence.  The applicant nonconcurred with the findings and requested a formal hearing with representation by military counsel.

An informal PEB was conducted on 11 April 1989 at Fort Sam Houston, Texas  at the request of the applicant’s counsel.  The PEB, after reviewing additional evidence, determined that while the condition was one that EPTS, it was aggravated by military service.  The PEB recommended that the applicant be separated from the service with severance pay based on a disability rating of 10%.
Again, the applicant disagreed with the PEB findings and requested a formal hearing.  A formal hearing was conducted on 26 April 1989 in which the applicant was represented by counsel and gave testimony in his own behalf.  The PEB again determined that he should receive a 10% rating for his disability and advised the applicant that he could submit any additional matters in his behalf with his case before it was forwarded to the Physical Disability Agency (PDA) for final approval.  The applicant submitted a statement in his own behalf whereas he asserted that his condition was worse than what the formal board observed and that had all of his medical records been present, the board would have granted him a larger disability rating.

On 23 May 1989 the PDA approved the findings and recommendation of the formal PEB and directed that the applicant be discharged no later than 5 July 1989 and that he be given a disability rating of 10%, with entitlement to severance pay at that rate.

Accordingly, he was honorably discharged on 27 June 1989 under the provisions of Army Regulation 635-40, paragraph 4-24e(3), by reason of physical disability with severance pay.  He had served 5 years, 9 months, and 27 days of total active service and was paid severance pay in the amount of $11,145.60.

In 1994 the VA rated the applicant’s condition as being 30 % disabling.

In the processing of this case a staff advisory opinion (COPY ATTACHED) was obtained from the Army Review Boards Agency medical advisor which opined that the applicant was properly evaluated and rated by the PEB and that the applicant, nor the evidence of record, had provided any evidence to warrant a change in that rating. 

There is a difference between the VA and Army disability systems.  While both the VA and the Army use the VA Schedule for Rating Disabilities (VASRD) to determine disability ratings, not all of the general policies set forth in the VASRD apply to the Army; thus there are sometimes differences in ratings.  The Army’s determination of a soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his grade, rank, or rating.  If the soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a soldier unfit by reason of service connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.         

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-2b, provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.
  
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.  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.

2.  The applicant not provided sufficient documentation to support his contention that he was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB was incorrect.  

3.  The fact that the VA, in its discretion, has awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department. 

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

__jev____  __rvo ___  ___js ___  DENY APPLICATION




						Loren G. Harrell
						Director



INDEX

CASE ID
AC95-01533
SUFFIX

RECON

DATE BOARDED
1998/11/25
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  108.02

2.

3.

4.

5.

6.