MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 23 October 2001
         DOCKET NUMBER: AR2001052317

         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.

Mr. Carl W. S. Chun		Director
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Ms. Shirley L. Powell		Chairperson
Mr. Allen L. Raub		Member
Mr. Thomas E. O'Shaughnessy, Jr.		Member

         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 her disability separation with severance pay be changed to disability retirement.

APPLICANT STATES: That she was separated with a 20 percent disability rating on 22 December 1999 and given severance pay. On 18 November 2000, the Department of Veterans Affairs (VA) rated her as 50 percent disabled from
23 December 1999. She believes that the Army should also have rated her as 50 percent disabled and separated her with a physical disability retirement. In support of her application, she submits: a copy of a 12 May 1999 DA Form 3947, Medical Evaluation Board (MEB) Proceedings with an MEB Narrative Summary; a copy of a 22 October 1999 DA Form 199, Physical Evaluation Board (PEB) Proceedings, a copy of a 18 November 2000 VA Rating Decision; and a copy of her DD Form 214.

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

That on 14 October 1983, she voluntarily enlisted in the United States Army Reserve for the state of Louisiana for a period of 6 years. She was ordered to active duty for training from 17 October 1983-29 March 1984. On 29 December
1988, she enlisted in the Regular Army and served continuously until separated with an honorable discharge on 22 December 1999 by reason of disability, with severance pay of $40,570.20.

The applicant served as a sergeant/E-5 in military occupational specialty (MOS) 75H, Personnel Services Specialist. Because of physical limitations related to knee and leg pain, she underwent an MOS Medical Retention Board (MMRB) on 11 November 1998. It determined that the applicant's bilateral patellar-femoral pain precluded her from performing the full range of physical tasks required of her MOS worldwide and under field conditions. She was referred for physical evaluation processing.

On 26 March 1999, the applicant underwent an MEB physical examination and was diagnosed as follows: (1) retropatellar pain syndrome, bilateral, (2) chronic low back pain without radiculopathy secondary to sprain from her large breasts, (3) wrist tendonitis, (4) breast pain, bilateral, (5) pelvic pain and dysmenorrhea. An MEB was held on 12 May 1999. It determined that her chronic low back pain without radiculopathy, wrist tendonitis, bilateral breast pain, and pelvic pain and dysmenorrhea were medically acceptable. Her bilateral retropatellar pain syndrome, mild bilateral carpal tunnel syndrome, and mild left cubital tunnel syndrome were determined to be medically unacceptable. The MEB recommended that the applicant be given a PEB. The applicant disagreed, but there is no further information concerning any appeal.



On 22 October 1999, a PEB diagnosed the applicant's chronic, bilateral retropatellar pain syndrome, mild bilateral carpal tunnel syndrome and mild left cubital tunnel syndrome and determined these medical conditions prevented her from satisfactorily performing the duties required by her grade and MOS. She was granted a combined disability rating of 20%. Additionally, the PEB recommended separation with severance pay. There is no record that the applicant concurred or nonconcurred with the findings and recommendation of the PEB.

On 22 December 1999, the applicant was separated from the service with an honorable discharge under the provisions of chapter 4, Army Regulation
635-40 for disability severance pay. She received $40,570.20. Her DD Form
214 shows that she had completed a total of 10 years, 11 months and 24 days of active military service for the period of enlistment under review. She had also completed 5 months and 13 days of prior active military service.

On 18 November 2000, a VA Rating Decision determined the applicant was
50 percent disabled (combined rating). She received a 50 percent disability rating due to a total abdominal hysterectomy with bilateral salpingo-oophorectomy (dysmenorrhea), a 10 percent disability rating for bilateral patellofemoral syndrome, and a 10 percent disability rating for bilateral carpal tunnel syndrome with tendonitis.

In the processing of this case, an advisory opinion (COPY ATTACHED) was obtained from the Medical Advisor to this Board who opined that the applicant was properly rated by the 22 October 1999 PEB and recommended no change to her discharge status. The Medical Advisor added that, although the Army and the VA use the same schedule for disability ratings, the VA's rating philosophy and application are completely different from the Army's.

The above advisory opinion was referred to the applicant for comment or rebuttal, but she failed to respond.

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 or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent. Section 1203, provides for the physical disability separation of a member who has less than 20 years active 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, 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 this requirement.

2. The applicant's disabilities were properly evaluated and rated by the Army and she was properly separated with disability severance pay. The rating action by the VA does not necessarily demonstrate any error or injustice in the Army's rating. The fact that the VA, in its discretion, awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish a basis for medical retirement for Department of the Army purposes.

3. An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under different law and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

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

__SLP __ __ALR___ __TEO__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records





























INDEX

CASE ID	AR2001052317
SUFFIX
RECON
DATE BOARDED	20011023
TYPE OF DISCHARGE	(HD)
DATE OF DISCHARGE	19991222
DISCHARGE AUTHORITY	AR635-40, chapter 4
DISCHARGE REASON
BOARD DECISION	(NC)
REVIEW AUTHORITY
ISSUES 1.	145.0000
2.
3.
4.
5.
6.