MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 September 2001
         DOCKET NUMBER: AR2001059803

         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 medical retirement be changed to a retirement for length of service.

APPLICANT STATES: That he did not need a medical retirement. A retirement for length of service would have given him 55 percent of his retired pay. He did not take the 50 percent pay for disability. He waited until 1996 when he got a 100 percent disability rating from the VA. Now he is losing out on special compensation provided for by law in 1999. He provides as supporting evidence his Medical Condition – Physical Profile Record, DA Form 3349, dated 8 September 1971 (which he annotated that he was on light duty for the past 7 years); his notification of Physical Evaluation Board Action dated 15 January 1973 (which he annotated that the term “unfit for active service” should be changed to “unabled because of physical disability,” that his 50 percent disability rating should have read 100 percent, and questioned why he did not receive severance pay); his disability retirement orders dated 2 February 1973; his 15 May 1996 election to receive VA compensation in lieu of military retired pay; and a 23 February 2001 letter from the VA regarding special compensation for certain severely disabled retirees.

COUNSEL CONTENDS: Counsel makes no contention.

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

After having had prior service, he enlisted in the Regular Army in 1953. He was promoted to Sergeant First Class, E-7 on 23 November 1966 in military occupational specialty 95B (Military Policeman).

The applicant received a permanent L3 profile on 8 September 1971 for arthritis in both knees and low back pain. He was given assignment restrictions of no crawling, stooping, running, jumping, prolonged standing or marching and no assignment requiring prolonged handling of heavy materials including weapons, no overhead work, no pull-ups or push-ups.

Apparently, the applicant did apply for voluntary retirement. A document dated 9 May 1972 requested the U. S. Army Enlisted Support Center verify his service as claimed on an attached Application for Voluntary Retirement, DA Form 2339.

On 16 November 1972, a Medical Evaluation Board (MEB) found the applicant unfit for duty with diagnoses of osteoarthritis, both knees; osteoarthritis, lumbosacral and cervical spine; bursitis, right shoulder; hyperuricemia; hyperlipoproteinemia; hiatal hernia; constitutional obesity; and tinea cruris, groin area. On 3 January 1973, the applicant agreed with the MEB’s action.

On 4 January 1973, a Physical Evaluation Board (PEB) found the applicant unfit for duty by reason of degenerative arthritis (20 percent), gout (20 percent), lumbosacral strain with characteristic pain on motion (10 percent), hiatal hernia (10 percent), tinea cruris (10 percent) and bursitis (zero percent) for a combined rating of 50 percent and recommended he be permanently retired from the service. On 15 January 1973, the applicant concurred in the PEB’s findings and waived a formal hearing of his case.

Effective 20 February 1973, the applicant was placed on the Permanent Disability Retired List with a 50 percent disability rating after completing 21 years, 8 months, and 25 days of creditable active service.

On 15 May 1996, the applicant applied to the VA to receive VA compensation in lieu of military retired pay, apparently at a VA disability rating of 100 percent.

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.

The VA Schedule for Rating Disabilities (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 10, U. S Code, section 1203, provides for the physical disability separation with severance pay (a one-time payment) of a member who has less than 20 years service and a disability rated at less than 30 percent.

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.

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 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.

Title 10, U. S. Code, section 1401 states that, if entitled to retired pay computed under more than one pay formula or under any other provision of law, a member is entitled to be paid under the applicable formula that is most favorable to him.

The Defense Finance and Accounting Service (DFAS) has indicated that the applicant did receive 55 percent of his retired pay. The 50 percent disability portion was calculated by DFAS and reported to the Internal Revenue Service so he did (or should have) received the tax consideration.

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 term “unfit” is merely the term used by the Army to mean “disabled” and it is used correctly on all the applicant’s medical board action documents.

3. There is no evidence of record nor does the applicant provide any to show that his disability retirement was improper. He admits that he was unfit for duty when he states that he had been on light duty for seven years prior to his retirement. He concurred in the findings of both the MEB and the PEB.

4. 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 regulations, 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. 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 or rated at a particular level, may be sufficient to qualify the individual for VA benefits or a higher disability rating level based on an evaluation by that agency.

5. Severance pay is authorized for members who are separated for the physical disability who have less than 20 years service and a disability rated at less than 30 percent. The applicant had more than 20 years service and a disability rated at greater than 30 percent. Therefore, he received the continuing benefit (in the form of a tax break) of a medical retirement instead of the one-time payment of severance pay.

6. The law provides that if entitled to retired pay computed under more than one pay formula, a member is entitled to be paid under the applicable formula that is most favorable to him. Records at DFAS indicate the applicant did receive retired pay at the 55 percent rate, with the 50 percent disability rating computed and reported to the Government for the tax benefit.

7. A law providing special benefits to certain disabled members passed 25 years after the member retired for physical disability, with his concurrence, is insufficient reason to grant the relief requested. Due to the amendment of this law, however, the applicant will become eligible for this special compensation effective 1 October 2001.

8. 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	AR20010598903
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.