MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 November 2002
         DOCKET NUMBER: AR2002075489

         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. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Eric N. Andersen		Member
Mr. John T. Meixell		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: Through counsel, that the applicant's discharge with severance pay due to physical disability be corrected to placement on the Temporary Disability Retired List (TDRL); that the applicant be given all back pay and allowances, less severance pay, this correction will necessitate; and "Determining the Petitioner's date of retirement to be the date that the Board acts favorably in this case."

APPLICANT STATES: Through counsel, that the Department of Veterans Affairs (DVA) rated the applicant 20 percent disabled due to severe limitation of motion in his right ankle with traumatic arthritis, and rated him 10 percent disabled due to painful scarring. Counsel argues that although the DVA rating is not binding on this Board, it is highly persuasive as to the actual degree of impairment suffered by the applicant at the time of his Physical Evaluation Board (PEB) hearing.

In support of his request the applicant submits his DVA rating decision and documents pertaining to his consideration by the Disability Evaluation System (DES).

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

He was commissioned and entered on active duty on 14 May 1996. He was awarded the area of concentration of field artillery and was promoted to first lieutenant.

On 29 December 1998, the applicant was involved in an automobile accident when an automobile traveling in the opposite direction lost control and swerved into his lane.

On 3 April 2000, a Medical Evaluation Board (MEB) was dictated. The MEB determined that the applicant was complaining of chronic right ankle pain, and was unable to walk on uneven surfaces. That walking more than ½ mile led to swelling in his right ankle, and his running was limited to an (unreadable) distance. The MEB determined that the applicant was medically disqualified for retention and referred him to a PEB.

On 12 May 2000, an informal PEB convened and determined that the applicant was physically unfit under Veterans Administration Schedule for Rating Disabilities (VASRD) code 5099-5003. The unfitting condition was described as "Chronic right ankle pain as a result of a fracture right calcareous that required open reduction and internal fixation. Further surgical intervention for subtalar fusion was accomplished. Hardware was removed 13 January 2000. Fracture has healed. Dorsiflexion is 5 degrees and planter flexion is 25 on the right. The unaffected ankle range of motion was Dorsiflexion 10 degrees and 40 degrees plantar flexion. Inversion and eversion on the right was 0." The informal PEB recommended that the applicant be discharged with severance pay, rated 10 percent disabled.

On 27 June 2000, the applicant's counsel requested reconsideration of the findings of the informal PEB. Counsel requested that the applicant be rated at least 30 percent disabled based on an additional rating for limitation of motion. Counsel further requested that the applicant be placed on the TDRL since his unfitting condition was not stable enough to permanently rate.

On 18 July 2000, a formal PEB was convened which determined that the applicant was physically unfit due to VASRD Code 5272. The formal PEB used the same description of the unfitting condition, but added "Rated as ankylosis of the subtalar joint based on 0 degree inversion and 0 degree eversion, because of poor weight-bearing position and inability to walk on uneven ground." The formal PEB recommended that the applicant be discharged due to physical unfitness, rated 20 percent disabled.

The applicant's counsel responded to those findings and recommendation in an undated letter. In that letter counsel contends that an additional 10 percent disability should be added to the applicant's rating based upon the limitation of motion in his tibio-talar joint due to fibrous ankylosis. Counsel asked that, in the alternative, the applicant be rated 20 percent disabled due to either limitation of motion or a moderately severe muscle injury, and that rating be added to the 20 percent disability rating he had already been assigned for fusion of his sub-talar joint.

On 2 August 2000, the PEB responded to the applicant stating that he did not provide information as to any new diagnosis or changes in his rated disability. The PEB explained to the applicant that he did not have ankle ankylosis based upon his dorsiflexion and plantarflexion test results.

The finding and recommendation of the formal PEB was approved and the applicant was honorably discharged on 31 August 2000 in the rank of captain for physical disability, rated 20 percent disabled.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service. Fitness for duty, within the parameters of the individual’s grade and military specialty, is the determining factor in regards to separation. If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired. 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.   In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career.

Title 38, United States Code, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service. The DVA, 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 DVA benefits based on an evaluation by that agency.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. There is no evidence to suggest that the scar the applicant sustained as a result of his operations would have precluded him from performing his duties. The fact that, other than references to the existence of a scar as a result of his operations, there were no comments concerning his scar in his MEB, PEB, or counsel rebuttals, lends credence to the presumption that the scar was not physically unfitting.

2. The fact that the DVA rated the scar has no bearing on whether it was physically unfitting. The DVA compensates veterans for any condition which is socially or industrially impairing. The Board has no doubt that the tenderness of the applicant's scar has caused him problems in performing certain activities. However, there is no indication that the scar would preclude him from performing duties as a field artillery officer.

3. The applicant appealed his informal PEB and his formal PEB through counsel.  The Board is satisfied that the applicant was afforded due process and his case competently presented to the PEB. Therefore, there is no error or injustice in the discharge of the applicant with severance pay, rated 20 percent disabled.

4. 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

___mhm__ ___ena__ ____jtm_ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075489
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021105
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.	108.04
2.
3.
4.
5.
6.