MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 December 2001
         DOCKET NUMBER: AR2001060615

         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:

Ms. Irene N. Wheelwright		Chairperson
Mr. Jose A. Martinez		Member
Mr. Thomas Lanyi		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 a disability rating of 100 percent, in lieu of being discharged by reason of physical disability with severance pay.

APPLICANT STATES: That the original determination did not consider all aspects of disability and additional injuries that have come to light in the recent past. In support of his application, he submits a letter of explanation, dated
1 July 2001. In summary, he states that his medical problems with his left shoulder, left knee, head injuries, and heart condition were never considered as part of the rating process or the decision by the Physical Evaluation Board (PEB). There are substantial supporting documents from active duty medical records to substantiate these medical conditions. He contends that his problems with his left knee, left shoulder and back resulted from a parachute accident in 1986. At the time of his separation from active duty, he was counseled by a civilian and told that all the orthopedic problems would be considered as a whole and that he would only have to list the back as the primary problem. He contends that it is very evident that was wrong. He was also told that the other conditions would be evaluated when the Board looked over the medical records. He contends that it is very evident that the Board did not consider any of the records except those associated with the back.

The applicant also submits a cover letter from his civilian attorney, dated 1 July 2001, with seven enclosures outlined in the letter.

COUNSEL CONTENDS: In effect, that the applicant was seriously injured in a parachute accident in 1986. Following that, he was medically discharged, rated
50 percent disability by the Veterans Affairs (VA) and is currently 100 percent disabled as rated by the Social Security Administration. He contends that the applicant currently holds a 50 percent disability rating, 40 percent (back) and
10 percent (hypertension). Since that time, it has become obvious that the left shoulder, left knee and head injuries were not considered; neither was the heart problems which have surfaced since. The applicant has had two stents inserted (1999 and 2000), he underwent back surgery in January 2000 and he continues to live in pain, dealing with physical limitations. Counsel requests that the applicant’s rating be raised to 100 percent.

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

The applicant enlisted in the Air Force on 27 April 1970, served as a medical specialist in Vietnam and was honorably discharged on 11 February 1974. He enlisted in the Regular Army on 27 January 1976 and was honorably discharged




on 18 October 1976 to accept a commission. He was commissioned as a Reserve officer in the infantry branch and entered active duty on 19 October 1976. The applicant was promoted to captain on 19 October 1980.

On 7 August 1987, the applicant was diagnosed by a Medical Evaluation Board (MEB) with post operative myofascial back pain and left L5 radiculopathy, resolved. The MEB recommended referral to a PEB. On 16 September 1987, the applicant concurred with the findings and recommendation.

On 26 October 1987, a PEB found the applicant physically unfit due to post operative myofascial low back pain with resolved L5 radioculopathy, VA Schedule for Rating Disabilities (VASRD) code 5299-5295. The PEB recommended a combined rating of 10 percent and that the applicant be separated from the service with severance pay. On 19 November 1987, the applicant did not concur with the findings and recommendations, waived a formal hearing and submitted a rebuttal. On 1 December 1987, after reviewing the applicant’s rebuttal, the PEB affirmed their previous decision and cited that the applicant did not provide information as to any new diagnosis or changes in his currently rated disability. On 17 December 1987, the applicant did not concur with the PEB review and demanded a formal hearing.

On 22 January 1988, the applicant appeared before a formal PEB with counsel. He submitted additional medical evidence from a civilian physician. A formal PEB found the applicant physically unfit due to post operative myofascial low back pain with resolved L5 radiculopathy, VASRD code 5299-5295. The formal PEB recommended a combined rating of 20 percent and that the applicant be separated from the service with severance pay. On 9 February 1988, the applicant did not agree with recommendations and submitted a letter of rebuttal. On 12 February 1988, after reviewing the applicant’s rebuttal, the PEB affirmed the decision of the formal PEB and cited that the applicant did not provide information as to any new diagnosis or changes in his currently rated disability.

On 23 February 1988, the U.S. Army Physical Disability Agency (USAPDA) approved the recommended findings of the formal PEB. Accordingly, the applicant was honorably discharged on 23 March 1988 under the provisions of Army Regulation 635-40, paragraph 4-24e(3), for physical disability with severance pay (20 percent) with entitlement to $67,334.40. He had served
16 years and 12 days of total active service.

The applicant provided VA documentation, dated 7 July 1988, which shows that service connection was granted and a rating of 40 percent was assigned for a spinal disc condition.



The applicant also provided documentation from the Social Security Administration, dated 29 June 1998, which shows he is entitled to a period of disability, commencing on 3 January 1996, and to disability insurance benefits.

The majority of the medical documentation provided by the applicant in support of his claim shows the diagnoses and evaluations for conditions which were treated between February 1991 and March 2001, which occurred well after his separation on 23 March 1988.

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, it is concluded:

1. Evidence of record shows that a MEB, a PEB, a formal PEB and the USAPDA found the applicant physically unfit due to post operative myofascial low back pain with resolved L5 radiculopathy.

2. The Board considered the applicant’s contentions that the original determination did not consider all aspects of disability and that additional injuries have come to light in the recent past.





3. The Board also considered the applicant’s contention that his medical problems with his left shoulder, left knee, head injuries and heart condition were never considered as part of the rating process or the decision by the PEB. However, the applicant’s service medical records do not indicate any other medical conditions incurred while entitled to receive basic pay which were so severe as to render him medically unfit for retention on active duty.

4. The Board considered counsel’s contention that the applicant currently holds a 50 percent disability rating by the VA. 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.

5. 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.

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

7. The applicant’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.

8. 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.

9. 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

INW____ JAM_____ TL______ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060615
SUFFIX
RECON
DATE BOARDED	20011218
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.0000
2.
3.
4.
5.
6.