MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 November 2001
         DOCKET NUMBER: AR2001057385

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Curtis L. Greenway		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)

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APPLICANT REQUESTS: In effect, that he be medically retired with pay and benefits, in lieu of being discharged by reason of physical disability with severance pay.

APPLICANT STATES: In effect, that his separation with severance pay
(20 percent) was rated inaccurately under the Department of Veterans Affairs (VA) rating system. In support of his application, he submits a copy of his formal Physical Evaluation Board (PEB) Proceedings, dated 28 October 1992; a VA Rating Decision, dated 7 August 1998; a letter from the Disabled American Veterans (DAV), dated 12 August 1998; VA documentation; and numerous copies of medical records.

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

The applicant enlisted in the U.S. Army Reserve on 22 May 1982 under the delayed entry program and entered active duty on 13 August 1982. He trained as a cannon crewmember and an instructor and remained on active duty through continuous reenlistments.

On 13 July 1992 the applicant was diagnosed by a Medical Evaluation Board (MEB) with bilateral pes valgoplanus, moderate flexible idiopathic (existed prior to service); bilateral cold weather injury, first degree, (mild); right ankle tendinitis, chronic, recurrent; and allergic rhinitis, chronic, recurrent. The MEB recommended referral to a Physical Evaluation Board (PEB).

On 20 August 1992 a PEB found the applicant physically unfit due to bilateral pes valgoplanus with tendinitis, VA Schedule for Rating Disabilities (VASRD) codes 5284 and 5276 (MEB diagnoses 1 and 3); and bilateral cold weather injury, first degree, (mild), VASRD codes 7199 and 7122 (MEB diagnosis 2). The PEB found the bilateral pes valgoplanus with tendinitis existed prior to service, but granted service aggravation based upon the applicant having more than 8 years of active service. The PEB recommended a combined rating of 20 percent and that the applicant be separated from the service with severance pay. The other diagnosis (allergic rhinitis, chronic, recurrent) was found not unfitting and not ratable. On 25 September 1992 the applicant did not concur with the findings and recommendations and demanded a formal hearing.

On 28 October 1992 a formal PEB affirmed the same findings and recommendations of the PEB.

On 24 December 1992 the U.S. Army Physical Disability Agency approved the recommended findings of the formal PEB. Accordingly, the applicant was honorably discharged on 12 February 1993 under the provisions of Army Regulation 635-40, paragraph 4-24b(3), for physical disability with severance pay (20 percent). He had served 10 years and 6 months of total active service.
The applicant provided VA documentation, dated 11 September 1998, which shows that service connection was granted and a combined rating of 50 percent was assigned for cold residuals of hands and feet and bilateral pes planus.

In the processing of this case, a staff advisory opinion was obtained from the Department of the Army Review Boards Agency Medical Advisor. The opinion reiterates the applicant’s Army disability evaluation process and points out that the VA rated the applicant with 10 percent disability for each extremity affected with mild cold weather injury and 10 percent for his pes valgoplanus, for a total of 50 percent. The opinion also points out that while the Department of Defense and the VA use the same schedule for disability ratings, their rating philosophy and application are completely different. The VA will assign rating to any service-connected ailment upon application. The Army Physical Disability System will rate disabilities that are service incurred or aggravated that terminate a military career. The applicant went through the Army disability evaluation system and ultimately accepted its disability findings and rating percentage. He had a PEB and was rated for the disability that terminated his military career. The various ratings that the applicant received from the VA were for any and all service-connected impairments, whether or not they were disabling or career ending. In conclusion, the Medical Advisor determined that the applicant was correctly rated by the PEB and that there is no medical reason to change the applicant’s discharge status or increase the disability percentage at this time.

The advisory opinion was forwarded to the applicant for his review and possible rebuttal. On 12 June 2001, on behalf of the applicant, the DAV provided a rebuttal to the advisory opinion. In summary, the DAV continues to support the applicant’s request to change his discharge status from honorable to a medical retirement. The DAV points out that the applicant was rated 50 percent by the VA and that the applicant’s disabilities warrant a comparable evaluation by the Army. The DAV also points out the importance of retirement benefits and that the applicant’s disabilities did occur in service and were career ending. The DAV requests that the Board reconsider its opinion and exercise extreme caution in all aspects of this review, to ensure that this administrative proceeding avoid arbitrary action and also the appearance of arbitrary action as well and observe the requirements established by law and implementation by regulation.

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

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. 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 individual’s 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.

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. The Board considered the applicant’s contention that his separation with severance pay (20 percent) was rated inaccurately under the VA rating system. However, the rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating.

2. An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, 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. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

3. The applicant’s disability was properly rated in accordance with the VASRD. His separation with severance pay was in compliance with law and regulation.

4. The foregoing is supported by the opinion from the Army Review Boards Agency Medical Advisor.

5. The DAV’s contentions do not demonstrate error or injustice in the applicant’s disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

6. 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.

7. 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

WTM___ AAO_____ CLG_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001057385
SUFFIX
RECON
DATE BOARDED	20011101
TYPE OF DISCHARGE	(HD)
DATE OF DISCHARGE	19930212
DISCHARGE AUTHORITY	AR 635-40 Paragraph 4-24b(3)
DISCHARGE REASON	Physical disability with severance pay (20%)
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.0000
2.
3.
4.
5.
6.