MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 06 AUGUST 2002
         DOCKET NUMBER: AR2001065372

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Ms. Paula Mokulis		Member
Mr. Donald P. Hupman, 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: Disability retirement in lieu of disability separation.

APPLICANT STATES: In effect, that she met all of the requirements for disability retirement at the time of her disability separation, however, the PEB (Physical Evaluation Board) failed to consider, or disregarded, "other significant" ailments incurred in the line of duty. The applicant cited her thoracic spine, splenectomy, and migraine headaches as the ailments which were disregarded. She states "the due process to rebut the decision" was not extended to her. In support of her request she submits a copy of her 2000 separation document and a copy of a June 2001 VA rating decision.

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

She entered active duty on 16 May 1996, completed training, and was briefly assigned to Fort Stewart, Georgia before being reassigned to Germany in October 1997 as a food service specialist.

Although the applicant's service medical records were not available to the Board, a narrative summary, completed in December 1999 as part of a Medical Evaluation Board (MEB), indicated the applicant's chief medical complaint was "neck and back pain." The evaluating physician noted that the applicant was involved in a single vehicle accident in which "she went over the railing of an overpass." She was initially treated in a German medical facility where she underwent a splenectomy, and was subsequently transferred to Wuerzburg Army Medical Center. When it was determined that the applicant had an "unstable cervical spine fracture as well as several T-spine compression fractures" she was transferred to Landstuhl Army Medical Center where she underwent an anterior C5/6 cervical fusion. The thoracic compression fractures were treated non-operatively. Following treatment and stabilization, the applicant continued to have complaints of neck and low back pain, which were exacerbated during her pregnancy.

Following the birth of the applicant's child in October 1999, and no significant change in her symptoms, the applicant was referred for disability processing. The MEB narrative summary noted that the applicant reported a variety of other medical ailments during her examination, including a past history of frequent severe headaches which improved with corrective eyewear, a history of dizziness and fainting, chest pain not associated with nausea, vomiting, or shortness of breath, low blood pressure which was treated with iron supplements, and nighttime leg cramps.

Following completion of her physical examination the physician concluded that the applicant's fracture subluxation of C5/6, status post anterior spinal fusion,


multi-thoracic spine compression fracture involving T3/4/5/6 and 8, and chronic neck and back pain, warranted referral to a PEB (Physical Evaluation Board). The applicant concurred with the findings and recommendation of the MEB on
8 March 2000.

On 10 April 2000 an informal PEB found the applicant's chronic neck and back pain, status post C5/C6 fracture subluxation that was treated with anterior fusion, as well as compression fractures T3-T8, prevented satisfactory performance of the applicant's duty in her grade and specialty and recommended the applicant be discharged with a disability rating of 20 percent. The applicant concurred with the findings and recommendation of the PEB on 15 May 2000 and on 26 July 2000 the applicant was discharged by reason of disability. She received more than $11,000.00 in disability severance pay.

Subsequent to the applicant's separation, in June 2001, the VA granted the applicant a combined disability rating of 60 percent for a variety of ailments, including her back condition (fracture of the cervical spine rated at 30 percent, compression fracture of the thoracic spine rated at 20 percent), splenectomy rated at 20 percent, and migraine headaches rated at 10 percent.

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 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same





impairment. Furthermore, unlike the Army 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 Physical Disability Agency (USAPDA) has noted in advisory opinions in similar cases that confusion frequently arises from the fact that the Army and the DVA use different rating systems. While both use the Veterans Administration Schedule for rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army. The Army rates only conditions determined to be physically unfitting, because they adversely affect the individual’s ability to perform assigned duties, thus compensating the individual for loss of a career. The DVA, on the other hand, may rate any service-connected impairment, in order to compensate the individual for loss of civilian employability or social functioning. The USAPDA has also pointed out that military disability ratings are based upon the degree to which a medical condition effects the ability to perform duty and not upon the diagnosis or name attached to the condition. By way of comparison, the VA can and does rate an individual for pain in many instances. The Army can only rate the same painful condition if it impairs the soldier’s ability to perform assigned tasks.

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. The applicant's disability was properly rated and her separation with severance pay was in compliance with law and regulation.

2. The applicant's contention that she was not afforded due process to contest the decision of the PEB is not supported by any evidence in available records, nor provided by the applicant. The Board notes that the applicant concurred with the findings and recommendation of both the MEB and informal PEB and waived her right to a formal PEB. The fact that she may have subsequently been successful in receiving a higher VA disability rating is not evidence that the Army’s rating was in error or unjust.

3. 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.

4. 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.

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

__LLS __ __PM ___ __DPH__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001065372
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020806
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.