MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 17 December 1998
DOCKET NUMBER: AC97-07674
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 discharge with severance pay be changed to a medical retirement.
APPLICANT STATES: That he should have been awarded disability retired pay. He had almost 16 years in service.
COUNSEL CONTENDS: That the applicants submission, in conjunction with the official military records, amply advances his contentions and substantially reflect the probative facts needed for equitable review.
EVIDENCE OF RECORD: The applicants military records show:
He enlisted in the Regular Army on 1 July 1980. He completed basic training and advanced individual training and was awarded military occupational specialty 76Y (Unit Supply Specialist). He attended basic airborne in 1980 but did not complete the course. He completed Air Assault School in 1988 and basic airborne in 1990. He had continuous service until his discharge.
On 4 May 1995, a Medical Evaluation Board found the applicant unfit for duty by reason of left ankle traumatic arthritis; right shoulder degenerative joint disease; right knee pain; and low back pain and referred him to a Physical Evaluation Board (PEB). The applicant agreed with the findings and recommendations.
On 31 July 1995, a Physical Evaluation Board (PEB) found the applicant physically unfit by reason of left ankle pain and right knee. The other two diagnoses were not found to be unfitting. A disability rating of 20 percent and separation pay with severance pay was recommended.
On 22 August 1995, the applicant nonconcurred in the findings and recommendations but waived a formal hearing. He did submit a written appeal.
His rebuttal was considered by the PEB but it was noted that no additional, objective, medical information was received which might influence the rating in his case.
On 25 November 1995, 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 15 years, 4 months and 25 days of creditable active service.
On 3 January 1997, the Department of Veterans Affairs granted him a combined 60% rating for ten medical conditions.
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.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, 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 applicants disability was properly rated in accordance with the VA Schedule for Rating Disabilities. His appeal of the findings were considered and it was determined he had submitted not new medical evidence that would have changed his rating. As he had less than 20 years service at the time and his disability rating was less than 30 percent, his separation with severance pay was in compliance with law and regulation.
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 and 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 applicants 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
KLW MHM KLW DENY APPLICATION
Loren G. Harrell
Director
INDEX
CASE ID
AC97-07674
SUFFIX
RECON
DATE BOARDED
19981217YYYYMMDD
TYPE OF DISCHARGE
(HD)
DATE OF DISCHARGE
19951125
DISCHARGE AUTHORITY
AR .635-40 . . . .
DISCHARGE REASON
A93.21/22
BOARD DECISION
(DENY)
REVIEW AUTHORITY
ISSUES 1.
145.00
2.
3.
4.
5.
6.
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