MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 22 August 2002
         DOCKET NUMBER: AR2002068241


         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. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Raymond V. O'Connor, Jr.		Member
Ms. Barbara J. Ellis		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: Reconsideration of his earlier appeal for physical disability retirement.

APPLICANT STATES: In effect, that his discharge be changed to medical. He also has shown that he has been awarded 40 percent disability compensation from the Department of Veterans Affairs (VA).

COUNSEL CONTENDS: Counsel supports the applicant’s request, stating the Board should review the additional evidence to substantiate the applicant’s request for a medical retirement.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records that were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2001058709) on 20 December 2001.

The applicant’s contentions are new argument and/or argument that require(s) Board consideration.

The evidence submitted shows that on 28 November 2001, the Department of VA Rating Board awarded the applicant 30 percent for bipolar disorder, 10 percent for tinnitus and zero percent for hearing loss, left ear, tendonitis, left arm; patellofemoral syndrome, left knee; patellofemoral syndrome, right knee; and erectile dysfunction. His combined total rating for all his service-connected disabilities was 40 percent.

On 29 August 2000, a Physical Evaluation Board (PEB) determined the applicant unfit for chronic left knee pain due to patellofemoral pain syndrome. The PEB stated that his functional limitations in maintaining the appropriate level of mobility, caused by his physical impairments made him unfit to perform the duties required of his rank and primary specialty. It recommended that he receive a zero percent disability rating. The applicant did not concur and demanded a formal hearing.

On 20 November 2000, the applicant was referred to a PEB for bipolar disorder.

On 15 December 2000, a PEB determined that the applicant’s bipolar disorder was manifested primarily by anxiety and depression, with the onset in 1974, with a remote history of multiple psychiatric hospitalizations. The PEB recommended a disability rating of 10 percent and stated that his disability for bipolar disorder did not exist prior to his service and was not permanently aggravated by service,


but was compensable in accordance with Title 10, United States Code, Section 1207a (8 years rule). The PEB determined that the applicant was physically unfit for bipolar disorder and chronic left knee pain and recommended separation from the service with severance pay and a combined rating of 10 percent. The applicant did not concur, elected to waive a formal hearing and not to appeal the decision.

On 28 December 2000, the Army Physical Disability Agency informed the applicant that it had reviewed his entire case file and concluded that his case was properly adjudicated, and the PEB’s findings and recommendations were supported by substantial evidence.

On 12 January 2001, the applicant elected to be transferred to the Retired Reserve with entitlement to apply for retirement benefits upon reaching age 60.

He was honorably separated from active duty on 30 March 2001 and transferred to the USAR Control Group (Reinforcement). He had 22 years of service.

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.

An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.





While both the Army and the VA use the VA 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 which are determined to be physically unfitting for further military service thereby compensating the individual for the loss of his or her military career. The VA, however, may rate any service connected impairment, thus compensating for loss of civilian employment. Therefore, it is not unexpected that these two different systems would produce different evaluations.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

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 view of the circumstances in this case, the applicant is not entitled to a medical retirement. He has not shown error, injustice, or inequity for the relief he now requests.

2. The fact that the VA has awarded the applicant a disability rating which is not in consonance with the Army's physically fit rating, but is within the policies of that agency, does not mean that either rating is erroneous. The VA rating does not establish physical unfitness, nor the degree thereof, for Department of the Army purposes. Each department is bound to operate within its own rules, regulations, and policies.


3. The applicant’s contentions that in effect, his discharge should be changed to a medical discharge and showing that he has been awarded 40 percent disability compensation from the Department of Veterans Affairs have been noted by the Board; however, a PEB determined that the applicant was physically unfit for bipolar disorder and chronic left knee pain. He was separated from the service with severance pay and a combined rating of 10 percent and a medical discharged was not recommended. It was also concluded that his case was properly adjudicated, and the PEB’s findings and recommendations were supported by substantial evidence.

4. The evidence of record supports the PEB determination that the applicant’s unfitting conditions were properly diagnosed and that his 10 percent disability rating for bipolar disorder and zero percent for knee pain were fair and just at the time of his discharge. His contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case.

5. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

6. 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

_JHL____ _BJL____ _RVO___ DENY APPLICATION




         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002068214
SUFFIX
RECON
DATE BOARDED	20020822
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.	108.02
3.
4.
5.
6.