MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 December 2002
         DOCKET NUMBER: AR2002077726

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Stanley Kelley		Member
Mr. Harry B. Oberg		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: In effect, that his retirement be changed to a physical disability retirement with a 100 percent disability rating.

APPLICANT STATES: That his retirement orders say he received a non-disability retirement but this retirement was mandatory due to a disability incurred while on active duty. He was unaware he could dispute the discrepancy between his non-disability retirement at 42 percent of his base pay versus the 30 percent disability rating the Department of Veterans Affairs (VA) awarded him. He has a spinal cord injury and is considered a walking paraplegic.

COUNSEL CONTENDS: That the applicant has presented medical evidence to support his assertion that he was more severely disabled at retirement than the 20 percent he was awarded. Counsel opines that his submission, in conjunction with the official Army records, amply advance his contentions and substantially reflect the probative facts needed for equitable review.

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

After having had prior U. S. Navy service, he enlisted in the Regular Army on 10 February 1987. He was promoted to Staff Sergeant, E-6 in military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman) on 1 January 1993.

On 12 April 1997, the applicant was injured in a motor vehicle accident. He suffered lacerations of the head, thigh, and right hand and a C-1 and C-2 fracture. The head and thigh lacerations were repaired in the emergency room of a civilian hospital. He underwent hand surgery for tendon repair. He was placed in a cervical halo. The Discharge Summary, prepared upon his transfer from the civilian hospital to Martin Army Hospital on 15 April 1997, indicated that he was doing well.

A Medical Board Narrative Summary dated 6 October 1998 shows the applicant's chief complaint as chronic neck pain, status post cervical fracture. The history of his present illness noted he sustained fractures of the first and second cervical vertebrae. After initial treatment, he was treated with a course of physical therapy and serial profiles but continued to have neck pain. He also had a laceration of the extensor tendon of the right index finger. That injury had healed although he had mild pain, especially with overuse of that hand. He also had a history of retropatellar knee pain. Significant hearing loss was noted on his audiology screening.

A physical examination revealed no significant tenderness over the applicant's spine or paracervical muscles. He could touch his chin to his chest and fully extend his neck without significant pain but his rotation was somewhat limited. He had pain with lateral rotation of his neck. He had 5/5 motor strength in the upper and lower extremities. He had normal sensation and normal reflexes. Examination of his left knee revealed no effusion. He had full range of motion and no joint line tenderness in the knee. X-rays of the C-spine showed the bony injuries had healed and there were no signs of instability or arthritis at that time.

The applicant was diagnosed with status post C-1 and C-2 fractures; chronic neck pain secondary to diagnosis 1; status post extensor tendon laceration, left index finger, healed; and chronic retropatellar pain, left knee. On 21 October 1998, he was referred to a physical evaluation board (PEB).

On 2 November 1998, an informal PEB found the applicant to be physically unfit for chronic pain in the neck due to C-1 and C-2 fractures and in the left knee due to retropatellar pain syndrome with a 20 percent disability rating. Diagnosis 3 (status post extensor tendon laceration, left index finger) was found to be not unfitting and not rated. It was recommended he be separated with severance pay. On 3 November 1998, the applicant nonconcurred and demanded a formal hearing with personal appearance and counsel.

There is no evidence the applicant took further action in regards to the PEB.

On 28 January 1999, the applicant completed an Application for Voluntary Retirement, DA Form 2339, and requested voluntary early retirement to be effective 1 July 1999. On 17 February 1999, his request was approved conditional upon his being listed with the Public and Community Service program.

On 1 July 1999, the applicant retired under the temporary early retirement authority. He had completed 17 years, 4 months, and 21 days of creditable active service.

On 16 July 1999, the VA awarded the applicant a 30 percent disability rating (status post C-1 and C-2 fracture with residuals of chronic neck pain, 10 percent; laceration of the right hand, status post extensor tendon repair, 10 percent; tinnitus, 10 percent; laceration of the forehead/scalp, 0 percent; laceration of the right posterior thigh, 0 percent; retropatellar pain syndrome, left knee, 0 percent; and bilateral hearing loss, 0 percent).

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

Title 38, U. S. 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.

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 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.

2. The applicant's contention that his retirement was mandatory is incorrect. He requested voluntary early retirement. He could have accepted separation with severance pay. In the absence of evidence to the contrary, the Board presumes he requested voluntary early retirement because of the longer-term benefits of an early retirement versus discharge with severance pay.

3. It is not clear how the applicant could have "disputed" his nondisability retirement versus the 30 percent disability rating the VA awarded him since the VA did not award the rating until after he was retired.

4. The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level.

5. The Board acknowledges that the applicant may be considered a walking paraplegic. However, the Army’s rating is dependent on the severity of the condition at the time the applicant separated and then only on the unfitting conditions. There is no evidence to show that his hand injury or tinnitus rendered him unfit to perform his military duties. The VA has the responsibility and jurisdiction to recognize any changes in medical conditions over time by adjusting his disability rating.

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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

__RJO__ __ SK___ __HBO__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077726
SUFFIX
RECON
DATE BOARDED	2002/12/19
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.