MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 March 2002
         DOCKET NUMBER: AR2001064881

         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:

Ms. Irene N. Wheelwright		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Gail J. Wire		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 his uncharacterized description of service be changed to honorable and that his discharge with severance pay be changed to a medical retirement.

APPLICANT STATES: That, as a result of his injuries, he has not been able to obtain any type of consistent employment. He has not been able to deal with the fact that he can no longer perform physical activities with his wife and children due to his service-connected disabilities. Had he been provided with complete information concerning the alternatives he could have pursued, he would have remained in the military or requested a military retirement. He provides no supporting evidence but a Department of Veterans Affairs (VA) rating decision was provided with his Army Discharge Review Board (ADRB) application to change the characterization of his discharge.

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

He was born on 20 November 1967. He enlisted in the Regular Army on 5 August 1998. He apparently received his initial physical profile on 1 September 1998 for a stress fracture.

The Medical Evaluation Board (MEB) Narrative Summary indicated the applicant’s complaint was of pain in the right anteromedial knee radiating to the ankle for the past two months. It was noted he was in mild acute distress and was able to walk slowly with a limp on the right. He had tenderness to palpation over the proximal anteromedial tibial plateau on the right. His knees were stable with no effusion and a full range of motion. An x-ray of the right knee in November 1998 showed a healing fracture of the medial tibial plateau on the right with no significant displacement.

On 17 November 1998, an MEB referred the applicant to a Physical Evaluation Board (PEB) for a diagnosis of stress reaction to the right proximal tibial plateau with no improvement. The applicant indicated he did not desire to continue on active duty and agreed with the MEB’s findings and recommendation.

On 23 November 1998, an informal PEB found the applicant unfit for duty due to chronic pain in the right leg due to stress reaction of the proximal tibial plateau, VA Schedule for Rating Disabilities (VASRD) code 5003, and recommended his separation with severance pay with a 10 percent disability rating.

On 28 December 1998, the applicant was discharged for disability with severance pay. He had completed 4 months and 24 days of creditable active service (approximately 144 days) and his character of service was described as uncharacterized.

On 29 June 2000, the VA continued the applicant’s 20 percent disability rating for a stress fracture of his right tibia and continued his 20 percent disability rating for a stress fracture of his left calcaneus (heel bone). A decision as to rating as service-connected depression secondary to bilateral stress fractures was deferred. The rating decision noted that the applicant complained of left foot and heel pain with occasional swelling on 11 April 2000.

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 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. Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating. 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.

The VASRD gives code 5003, degenerative arthritis (hypertrophic or osteoarthritis), in the absence of limitation of motion, a 20 percent rating with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitation exacerbations and a 10 percent rating with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.

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, 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.

---

Army Regulation 635-200 governs the separation of enlisted personnel. In pertinent part, it states that unless the reason for separation requires a specific characterization, a soldier will be awarded an uncharacterized description of service if in an entry-level status. (For Regular Army soldiers, entry-level status is the first 180 days of continuous active duty.)

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 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 (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level.

3. The Board notes that at the time of the applicant’s MEB his complaint was only of right leg pain. No mention was made of left heel pain at that time. The Board notes that the Narrative Summary indicated the applicant was able to walk, albeit slowly and with a limp on the right. The Narrative Summary did not indicate that he was incapacitated at any time. It noted that he had no range of motion limitations. The applicant agreed with the MEB’s findings; he did not disagree or indicate that he had left heel pain, also. Based upon these facts, it appears that he was properly given a 10 percent disability rating by the Army and discharged with severance pay.

4. As the applicant did not have 180 days of continuous active service at the time of his discharge, his character of service was appropriately described as uncharacterized.

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

__inw___ __rjw___ __gjw___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001064881
SUFFIX
RECON
DATE BOARDED	20020312
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.	108.02
3.
4.
5.
6.