MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 July 2002
         DOCKET NUMBER: AR2002067623

         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
Mr. Paul A. Petty		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. Roger W. Able		Member
Mr. Thomas B. Redfern		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 her discharge for physical disability with severance pay be changed to physical disability retirement.

APPLICANT STATES: In effect, that she was discharged with severance pay on 21 March 1990, because of 10 percent disability determined by an Army Physical Evaluation Board (PEB) but she was rated with 70 percent disability by the Department of Veterans Affairs (VA) the day after. She submits a copy of a VA rating decision, dated 11 March 1991, that shows VA ratings of 50 percent for status post bifrontal craniotomy, 30 percent for post operative anterior communication artery aneurysm with subarachnoid hemorrhage and post operative right medical frontal arteriovenous malformation with organic brain syndrome, 10 percent for headaches, and zero percent for right hearing loss, for a total combined of 70 percent disability.

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

That after being in the delayed entry program beginning on 8 August 1985, she enlisted in the Regular Army on 10 February 1986. She completed basic training, advanced individual training to be an operating room specialist, and was assigned to the Letterman Army Medical Center (LAMC), Presidio of San Francisco, California, on 5 October 1986. She was advanced to the grade of specialist four (SP4) on 1 November 1987.

On or about 9 April 1989, she suffered a subarachnoid hemorrhage from an artery aneurysm in the left anterior communicating artery of the brain and was also found to have arteriovenous malformation (AVM) in the right medial frontal lobe of the brain. This hemorrhage resulted in emergency surgery (craniotomy). Follow up surgery (cranioplasty and removal of a remaining AVM) was done on or about 12 June 1989.

After an appropriate period of convalescence, the applicant resumed duty in her previous capacity as an operating room technician. She demonstrated the ability to perform this duty, but only to a limited extent and for less time out of each day than would be considered a normal working shift. On 26 January 1990, she was given a physical profile of no assignments where sudden loss of consciousness might endanger herself or others.

On 8 February 1990, a Medical Evaluation Board (MEB) was conducted at LAMC due to her left anterior communicating artery aneurysm and resulting profile. The MEB noted on the conclusion of a neuropsychological evaluation conducted on or about 18 December 1989, that the applicant demonstrated mild impairment of memory and new learning, and a mild nonverbal auditory discrimination deficit. She also demonstrated decreased arousal, lack of initiative, poor planning and judgment, social withdrawal, and dysphoria (a state of feeling unwell or unhappy)

with the result that she might have difficulty in realizing her goals in life. The MEB recommended referral to a PEB. The applicant did not desire to continue on active duty and agreed with the MEB's recommendation.

A PEB was conducted on 10 February 1990, at LAMC. The PEB described the applicant's disability as, "Post surgery (x2) in June 1989 for left anterior communicating artery aneurysm with subarachnoid hemorrhage and for right medial frontal arteriovenous malformation: with residual organic brain syndrome with mild cognitive impairment and mild accentuation of pre hemorrhage personality traits, productive of slight social and industrial impairment. EPTS (existed prior to service), service aggravated. … The soldier's functional limitations in maintaining alertness and stamina, caused by the physical impairments recorded above make the soldier unfit to perform the duties required of a SPC in the MOS (Military Occupational Specialty) of an Operating Room Specialist." The PEB determined that the applicant had 10 percent disability, was physically unfit for continued service, and was eligible for separation with severance pay. Disability ratings of less than 30 percent for soldiers with less than 20 years service require that the soldier be separated from the service with severance pay. The applicant was advised of the findings and recommendations of the PEB. She received a full explanation of the results of the findings and recommendations and her legal rights. She concurred with the findings and recommendation and waived a formal hearing of her case. She was so discharged on 21 March 1990.

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. Confusion arises from the fact that different rating systems are used by the Army and the VA. While both use the Veterans Administration Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army. The Army rates only conditions determined to be physically unfitting at the time of


discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

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 PEB properly rated only conditions determined to be physically unfitting for military service at the time of discharge, thus compensating the applicant for loss of a military career. Award of a higher VA disability rating at a later time does not establish error or injustice in the PEB rating. The VA may also consider in its ratings, disabilities that are not considered unfitting for military service and therefore not rateble as a military service disability. Thus, the VA ratings may be higher than the those that are awarded by the Army but such higher VA ratings do not establish error or injustice the Army's disability ratings and discharge.

2. 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

__jl____ __ra____ ___tr_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067623
SUFFIX
RECON
DATE BOARDED	20020712
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108 – Disability Separation
2.
3.
4.
5.
6.