MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 12 September 2002
         DOCKET NUMBER: AR2002070226


         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. David E. Weightman		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Donald P. Hupman, Jr.		Member
Mr. William D. Powers		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 to correct his military records by showing his injuries received in the line of duty (LOD) on
6 April 1998 were evaluated by the Army, and that he was awarded a 40 percent disability rating and disability retirement on 23 April 1998.

APPLICANT STATES: In effect, that after the Physical Evaluation Board (PEB) found him physically unfit by a 1991 left leg injury he received in a military parachute jump and awarded him a 10 percent disability rating, and before he was separated on 23 April 1998, he had an accident on 6 April 1998 with severe injuries for which he was hospitalized and found in LOD, but not evaluated for disability retirement purposes. He also states that the disability evaluation rules are guided by the United States Code (USC), and the Army should follow the same rules as the Department of Veterans Affairs (VA). He states he questioned his commander and members of the Patient Affairs Division of the Womack Army Medical Center (WAMC) about his condition and was told he could later appeal to the Army Board for Correction of Military Records to have his 10 percent rating increased. He states he advised the Medical Boards Section there that he wished to have these injuries included in his final judgment at the time of his processing for discharge. He states he spoke to Army PEB officials at WAMC who advised him "that the injuries suffered would cause him to have a higher disability rating from the Army." He states his injuries severely hamper him enough that he has been issued a handicapped placard in accordance with North Carolina state law. He states that in his previous appeal the Board erroneously indicated his injuries received on 6 April 1998 did not adversely impact on his ability to continue to perform his duties, since he "was ALREADY precluded from performing duty by the injury [the 1991 left leg injury] that I was being discharged for…"

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the decisional documents prepared to reflect the Board's previous considerations of the case (AR1999028762) on
16 December 1999 and (AR2000041918) on 12 September 2000.

The applicant submits a VA evaluation of his service connected disabilities, including the 1991 and 1998 incident injuries.

The applicant’s submission is new argument/evidence that the Board may consider as an exception to policy.

The applicant was injured in an accident on 6 April 1998, while he was driving a fire/water truck as a volunteer firefighter and the truck rolled over. He was hospitalized at the Duke University Medical Center (DUMC) and treated for his injuries, and discharged to the WAMC on 8 April 1998. He continued on leave and was honorably discharged on 23 April 1998 for a 10 percent rated disability with $29,192.40 severance pay. He signed his DD Form 214 (Certificate of Release or Discharge from Active Duty). He was discharged in pay grade E-5 with 9 years, 3 months and 7 days of active service, and with the military occupational specialty of Voice Interceptor.

On 11 May 1998, a Statement of Medical Examination and Duty Status (DA Form 2173 was completed showing his injuries received were considered to have been incurred in LOD. On 1 May 1998, a physician from the DUMC noted his injuries and that permanent partial disability may result. The applicant's commander noted the details of the accident, that the applicant was on leave, that no formal line of duty investigation was required, and that the injury is considered to have been incurred in LOD.

On 29 October 1998, the applicant was evaluated by the VA and awarded a combined service connected disability rating of 40 percent. He was awarded
20 percent for L1 Vertebra compression fracture with T12-L1 disc space narrowing; 10 percent for degloving injury of the scalp with right skull fracture;
10 percent for left femur fracture with arthritis of the knee; and 0 percent for residuals of buttock burns and right scapula fracture (major).

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for 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 that was not in the record at the time of the Board’s prior consideration. This includes but is not limited to any facts or arguments as to why relief should be granted. 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 one 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.

The regulation further provides that Army records are presumed correct unless shown otherwise, and that it is the applicant's burden of proof to show error or injustice.

Title 38, USC, governs the VA. Generally, the VA awards 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, which may not be 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.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement or Separation, provides the policy and procedures for disability processing. The regulation provides that for individuals to be found unfit by reason of physical disability, they must be determined unable to perform the duties of their office, grade, rank or rating.

Army Regulation 40-501, Standards of Medical Fitness, provides for evaluation of soldiers for disability processing. It also provides that a member's continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform their duties, or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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 has received reconsideration of his appeals based on the circumstances of new argument/evidence that the Board has considered as an exception to policy.

2. The applicant's contentions that he was erroneously not evaluated for his 1998 injury and not awarded a 40 percent disability rating upon his discharge from the Army have been considered by the Board; however, his application or the evidence of record does not support them. The evidence clearly shows that after hospital treatment for his injuries, he was transferred from the DUMC to the WAMC, from civilian care to military care. It also shows he was not retained by the WAMC or to a duty status, but remained on transition leave. It also shows he accepted his discharge on 23 April 1998 without a change of his medical status. It does not show he was given a rating beyond 10 percent, or that he was advised to appeal the rating after discharge. He has not shown he was not evaluated for the injuries he received on 6 April 1998 while on active duty and prior to his separation.

3. The Board presumes regularity in this case that his commander and WAMC officials knew the details of his injuries, and his pending discharge, and did not change his rating. The applicant has not shown otherwise.

4. The Army does not change its disability ratings based on VA determinations.

5. The applicant's accident on 6 April 1998 was unfortunate, however, as discussed in his previous considerations, he has not shown disqualification, interruption of his service or that he was so debilitated so as to prevent him from performing his duties based on that incident. While he was already found unfit based on his 1991 leg injury, he was not found unfit based on the latter injuries. It has not been shown that those latter injuries, in and of themselves, indicate his disqualification from active duty or would have been rated such at the time.

6. The Board further concludes that the applicant cannot now be evaluated for his injuries occurring on 6 April 1998. Notwithstanding those circumstances however, he has been evaluated by the VA and, considering that military disability relates only to the individual's ability to perform his assigned duties (fitness vs. unfitness), and whereas VA disability applies to a broader spectrum of considerations (social and industrial), he has been properly awarded compensation by the VA.

7. All of the available information has been reviewed in this case, including all of the evidence submitted by the applicant. It is also noted that the handicapped placard issued to the applicant by North Carolina does not show that the applicant's disability rating by the Army is in error or should be increased.

8. 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.

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

__JNS___ _WDP__ _DPH___ DENY APPLICATION





         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002070226
SUFFIX
RECON	AR2000041918
DATE BOARDED	20020912
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108
2.
3.
4.
5.
6.