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ARMY | BCMR | CY1997 | 9705647
Original file (9705647.rtf) Auto-classification: Denied
APPLICANT REQUESTS: The applicant requests her 10 percent disability separation be changed to a 30 percent disability retirement.
APPLICANT STATES: That not all her medical conditions were considered by her medical board.

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

She was born on 23 May 1964. She completed 12 years of formal education. She entered the Delayed Entry Program on 7 February 1991 and enlisted in the Regular Army on 26 February 1991 for 5 years. She completed basic training and advanced individual training and was awarded military occupational specialty 71L (Administrative Specialist).

On 25 January 1994, the applicant underwent surgery on the 5 th metatarsal of the right foot to alleviate a chronic painful callus, plantar aspect, of the 5 th metarso-phalangeal joint of that foot. A second surgery was performed in an attempt to alleviate the continued callus formation under the distal stump of the 5 th metatarsal shaft. However, the applicant continued to have unrelenting pain in her right foot.

On 31 July 1996 a Physical Evaluation Board (PEB) found the applicant physically unfit for foot pain, status post surgery neuroma right foot, over the 5 th metatarsal shaft manifested as pain on motion. A disability rating of 10 percent was recommended.

On 30 August 1996, the applicant was honorably discharged in pay grade E-4 under the provisions of AR 635-40, for physical disability with severance pay. She received a 10 percent disability rating. She completed 5 years, 6 months and 5 days of creditable active service. Her awards and decorations included the Army Commendation Medal (1 st Oak Leaf Cluster), the Army Achievement Medal (3d Oak Leaf Cluster) and the Army Good Conduct Medal.

On 28 September 1996, the Department of Veterans Affairs granted her a combined 40% rating for total abdominal hysterectomy (30 percent) and status post excision of the 5 th metatarsal of right foot with nerve entrapment (20 percent). Ratings of 0 percent were given for the issues of migraine headaches, right ovarian cysts, removal of left ovary, atrioventricular node reentrant tachycardia and depression with trouble sleeping.

On 25 October 1996, the applicant filed for correction of her military records based upon the VA findings.

In the processing of this case, a staff advisory opinion was obtained from the Medical Advisor to the Department of the Army Review Board Agency. It contains no information, advice or recommendation which would constitute a basis for granting the relief requested. The opinion noted that the VA granted 0 percent rating for the issues of migraine headaches, right ovarian cysts, removal of left ovary, atrioventricular node reentrant tachycardia and depression with trouble sleeping. While the VA granted 30 percent for the total abdominal hysterectomy, this service-related condition did not disqualify her for retention in the service and so would have no bearing on the PEB’s disability finding.

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.

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.

 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, 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’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities. Her separation with severance pay was in compliance with law and regulation.

3. The foregoing conclusions are supported by the provided advisory opinion.

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

5. Therefore, 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



                                   Karl F. Schneider
                                                      Acting Director

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