MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 September 2001
         DOCKET NUMBER: AR2001059337

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Eric N. Anderson		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)

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APPLICANT REQUESTS: That his discharge with severance pay be changed to a disability retirement.

APPLICANT STATES: That he understands that current legislation allows the Department of Defense to retire a member for disabilities rated 30 percent or higher by the VA shortly after discharge from the military. He provides his Certificate of Release or Discharge from Active Duty, DD Form 214, and his VA rating decision as supporting evidence.

COUNSEL CONTENDS: That the applicant maintains that his disabilities were more disabling than found by the Army and that he should have been permanently retired due to his disabilities. Counsel opines that the applicant’s submission, in conjunction with the official Army records, amply advance his contentions and substantially reflect the probative facts needed for equitable review.

EVIDENCE OF RECORD: The applicant's military records are not available. Information contained herein was obtained from alternate sources.

The applicant enlisted in the Regular Army on 20 June 1995. He completed basic training and advanced individual training and was awarded military occupational specialty 13M (Multiple Launch Rocket System Crewmember).

A Medical Evaluation Board Narrative Summary shows the applicant was evaluated for a complaint of low back pain that started with a motor vehicle accident in October 1996. X-rays ruled out spondylolysis. The X-rays are not available. A physical examination revealed his spine was straight with a decrease in lumbar lordosis and that his active range-of-motion was restricted in all planes of motion secondary to pain. The MEB recommended he be referred to a Physical Evaluation Board (PEB) for a diagnosis of mechanical low back pain with aggravation by repetitive lifting and bending. On 23 March 2000, the applicant agreed with the MEB’s findings and recommendation.

On 11 May 2000, the PEB found the applicant unfit for duty by reason of mechanical low back pain with unremarkable radiographs and an unremarkable examination with no neurological deficits, VA Schedule of Rating Disabilities (VASRD) code 5003, with a 10 percent disability rating. On 19 May 2000, the applicant concurred in the PEB’s findings and recommendation and waived a formal hearing.

On 3 August 2000, the applicant was discharged by reason of a physical disability with severance pay.

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On 28 December 2000, the VA awarded the applicant a combined disability rating of 50 percent for chronic low back pain with herniated disk at L4-5, with significant spondylolysis (40 percent) (VASRD code 5295) and hypertension (10 percent). The decision noted that the higher evaluation of 40 percent is warranted when the record shows lumbosacral strain with listing of the whole spine to the opposite side.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. Paragraph B-24 states that often a soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain. Rating by analogy to degenerative arthritis (VASRD code 5003) as an exception to analogous rating policies may be assigned in unusual cases with a 20 percent ceiling. Concerning VASRD code 5295, lumbosacral strain, when there are no objective medical findings of neurological involvement, lesser ratings will begin with a 0 percent rating for chronic low back pain of unknown etiology (mechanical low back pan). Demonstrable pain on spinal motion or discovery of back pain etiology will warrant a 10 percent rating.

The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition.

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.

Public Law 106-65, dated 5 October 1999, added section 1413 to Title 10, U. S. Code. It provides special compensation ($100, $200, or $300 per month if the

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qualifying service-connected disability is rated as 70 or 80 percent, 90 percent, or 100 percent, respectively) for certain severely disabled retirees. An eligible member is a retired member who is not retired for disability, is in a retired status, and has 20 or more years of service for purposes of computing retired pay. The law was later amended to provide this special compensation to delete the requirement to have not been retired for disability. The amendment takes effect on 1 October 2001 and shall apply to months that begin on or after that date. No benefit may be paid under this section to any person by reason of the amendment for any period before that date. The Board is not aware of any other legislation that allows a member to receive a medical retirement if he or she has disabilities rated at 30 percent or higher shortly after discharge.

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 this requirement.

2. 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. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

3. The Board notes that neither the Army’s X-rays nor the VA’s X-rays are available to verify the condition of the applicant’s spine at each examination. However, a physical examination of the applicant’s spine by the Army found that his spine was straight. No listing of the whole spine to the opposite side was noted. Therefore, the Army’s rating of 10 percent for mechanical low back pain appears to be proper.

4. The applicant does not provide details of the current legislation he contends would allow him to be medically retired and, at his current VA rating of 50 percent, he does not meet the criteria of Public Law 106-65 as amended.

5. 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

__rvo___ __ena___ __teo___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059337
SUFFIX
RECON
DATE BOARDED	20010927
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.