MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 10 November 1998
DOCKET NUMBER: AC97-06529
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: That his discharge be changed to a medical retirement or he be placed on the Temporary Disability Retired List until his medical condition is stable.
APPLICANT STATES: He had multiple medical problems and had a sufficient percentage of disability to be medically retired.
EVIDENCE OF RECORD: The applicant's military records show:
After having been honorably separated from the Regular Army in 1972, he reenlisted in the Regular Army on 28 January 1987. He completed advanced individual training and was awarded military occupational specialty 63E (M1 Abrams Tank System Mechanic).
On 19 December 1995, the applicants commander noted he was physically incapable of reasonably performing his duties as a 63E due to his chronic neck and lower back pain and recommended he be considered unfit for his duties as a 63E.
A medical evaluation board (MEB) examination noted that his chief complaint was low back pain. He had full range of motion, normal sensation, strength and no significant neurological deficiencies. On 5 January 1996, the MEB diagnosed the applicant with low back pain and recommended he be referred to a Physical Evaluation Board (PEB). On 11 January 1996, the applicant concurred with the findings and recommendation.
On 18 January 1996, an informal PEB found the applicant physically unfit by reason of low back pain and recommended a disability rating of 20 percent and his separation with severance pay. On 26 January 1996, the applicant noncurred in the findings and recommendations and requested a formal hearing. On 15 February 1996, the applicant withdrew his request for a formal board and agreed with the informal PEBs findings.
On 10 April 1996, the applicant was honorably discharged in pay grade E-6 under the provisions of Army Regulation 635-40, for physical disability with severance pay. He received a 20 percent disability rating. He completed 11 years, 10 months and 25 days of creditable active service.
Title 38, U. S. 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. Consequently, due to the two concepts involved, an individuals medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.
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.
In the processing of this case, an advisory opinion was obtained from the Physical Disability Agency. That Agency noted no errors or injustices in the applicants disability case which would authorize or warrant any change in his military records or separation and recommended that his military records remain unchanged.
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. The applicants commander noted that his neck and lower back pain made him physically incapable of performing his military duties. The MEB noted his chief complaint was low back pain. The MEB and the PEB found him unfit by reason of low back pain and he agreed with their findings.
2. Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). These percentages are applied based on the severity of the condition. The MEB examination found few physical findings to support anything more than pain, which will not be rated higher than 20 percent unless there is some other physical manifestations.
3. 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, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating.
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
CMF_____ IEW_____ MKP_____ DENY APPLICATION
Loren G. Harrell
Director
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