MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 29 APRIL 2003
         DOCKET NUMBER: AR2002079059

         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. Gale J. Thomas		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Thomas Lanyi		Member
Mr. Bernard P. Ingold		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 his records be corrected to show he received a
physical disability retirement.

APPLICANT STATES: That he was separated with a 10 percent disability rating, however, at the time of his separation he had a permanent hearing profile, problems with his knees, high blood pressure, arthritis, back problems, and was also under the care of a psychiatrist. The Department of Veterans Affairs (VA) had rated his disability at 100 percent for Schizophrenia. He feels he was inappropriately discharged from the service, and was not allowed to complete his 20 years of service for retirement. In support of his request the applicant submits copies of his July 1990 Discharge Summary from the Tuskegee, Alabama VA Medical Center, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a statement of benefits from the Department of Veterans Affairs.

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

The applicant originally entered active duty on 14 October 1968, and served until October 1970. He had a break in service and reenlisted in the Regular Army on 26 August 1974, in the pay grade of E-5, for a period of 6 years, in the Military Occupational Specialty (MOS) of 11B (infantryman). During his last period of service he completed two tours in Germany and two tours in Korea.

He was promoted to the pay grade of E-6 and E-7, on 9 March 1975 and
10 February 1980, respectively.

In June 1985, he was issued a permanent physical profile of “3” for severe high frequency hearing loss.

On 20 August 1985, the applicant was seen by a MOS/Medical Retention Board (MMRB). The MMRB recommended that the applicant be retained in his current MOS 11B, stating that his permanent medical condition did not preclude him from performing satisfactorily in his current MOS.

In April 1988, the applicant was issued a permanent physical profile of “3” for Scapholunate instability, left wrist.

On 3 November 1988, the applicant was seen by a MMRB, which recommended that he be retained in his current MOS 11B. However, notwithstanding the recommendation by the MMRB, the Commanding General, recommended his reclassification.

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On 24 February 1989, the U.S. Army Total Personnel Command (PERSCOM), Retention Management Branch, disapproved a request from the applicant’s command for reclassification. PERSCOM stated that the applicant’s limitations were too restrictive for reclassification into any available MOS, and that his restrictions also precluded his satisfactory performance in his secondary MOS.
PERSCOM directed his referral to the U.S. Army Disability System for evaluation and disposition.

On 8 August 1989, the applicant underwent a Medical Evaluation Board (MEB). His MEB narrative summary noted his chief complaint was pain in his left wrist, the site of a previous ganglion that was excised in 1969. The summary indicated that the applicant, in December 1987, developed left dorsal wrist pain when doing push-ups, which resulted in his April 1988 permanent physical profile for no push-ups, heavy lifting or grasping. The evaluation showed the applicant had a history of hypertension with fair control, and reported that he had a P3 profile for high-frequency hearing loss, which he had carried for eight years. There was absolutely no mention or complaint of any psychological problems, or an indication that he was being seen by a psychiatrist. As a result of his MEB, the evaluating physician rendered a diagnosis of Scapholunate dissociation, left wrist, and high frequency hearing loss, and recommended he be referred to a Physical Evaluation Board (PEB).

On 21 August 1989, the applicant concurred with the MEB recommendation.

On 21 August 1989, the applicant signed a statement that he had been advised that he could apply for continuance on active duty for the purpose of attaining retirement eligibility (20 years of active Federal service), but was declining the opportunity to apply.

On 24 August 1989, an informal PEB found the applicant unfit for continued active duty and recommended he be separated from the service with severance pay. He was given a disability rating of 10 percent for Scapholunate - dissociation of left wrist. The applicant concurred with the findings of the board and waived his right to a formal PEB hearing.

On 16 October 1989, the applicant was discharged under the provisions of Army Regulation 635-40, paragraph 4-24e(3), physical disability with severance pay. His DD Form 214 indicates he had a total of 19 years and 20 days of active service, and received $67,795.80 in severance pay.

The applicant provides a Discharge Summary, dated 31 July 1990, which shows he had been admitted to the Veterans Administration Medical Center, in Tuskegee, Alabama on 5 July 1990, and was diagnosed with Schizophrenia, depressed with paranoid features, chronic degenerative arthritis and Tinea pedis (fungal infection). The discharge summary further stated that the applicant had shown steady progress during the course of his hospitalization, and at the time of his discharge his condition was listed as “much improved.”

On 9 November 1990, the Department of Veterans Affairs advised the applicant that it had determined that he was entitled to a service connected disability for a nervous condition, effective 1 August 1990, and that his combined evaluation had increased from 30 percent to 100 percent disabling effective 1 August 1990. He was also informed that a follow-up examination was being requested, to be conducted at the VA Medical Center, Tuskegee, Alabama, in order to reevaluate both his arthritis and his nervous condition.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

The Army Physical Disability Agency (USAPDA) has noted in advisory opinions in similar cases that confusion frequently arises from the fact that the Army and the VA use different rating systems. While both use the Veterans Administration Schedule for rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army. The Army rates only conditions determined to be physically unfitting, because they adversely effect the individual’s ability to perform assigned duties, thus compensating the individual for loss of a career. The VA, on the other hand, may rate any service-connected impairment, in order to compensate the individual for loss of civilian employability or social functioning. The USAPDA has also pointed out that military disability ratings are based upon the degree to which a medical condition effects the ability to perform duty and not upon the diagnosis or name attached to the condition. By way of comparison, the VA can and does rate an individual for pain in many instances. The Army can only rate the same painful condition if it impairs the soldier’s ability to perform assigned tasks.

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. While the applicant indicates that he was not permitted to complete his 20 years of military service in order to retire, the evidence available to the Board indicates that he was given the opportunity to remain on active duty, in spite of the findings of his PEB, but chose not to do. Instead, the applicant’s records indicated that he accepted the findings and recommendation of the informal PEB and was discharged by reason of his unfitting wrist condition. He received more than $67,000.00 in separation pay.

2. The applicant's 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 by his separation from the service. The fact that he chose to separate from active duty with more than 19 years of service, rather than request continuation in order to qualify for regular retirement does not now serve as a basis to change the reason for his separation.

3. The applicant also maintains that not only did he have an unfitting wrist condition, he had several other ailments, which he maintains should have been included in determining his disability rating. However, with the exception of his high-frequency hearing loss, which was determined not to be unfitting, none of his other ailments were raised as issues during his disability processing. Had the physician, conducting his MEB evaluation, noted any of those other conditions as he reviewed the applicant’s service medical records, or questioned the applicant concerning his medical problems, it would be reasonable to conclude that the evaluating physician would have noted those concerns. The MEB summary, however, is silent regarding any other medical conditions, beyond the applicant’s hearing loss and wrist condition. The Board notes that the applicant not only concurred with the findings of the MEB but also concurred with the informal PEB and waived his right to a formal hearing, at which he would have been able to raise issues which he felt were not adequately addressed during his informal hearing.

4. The applicant provides no evidence or documentation with his application to this Board which substantiates the existence of any additional medical problems which he feels should have been, but were not, addressed by the MEB or PEB. There is no evidence in the available records that suggests the applicant had psychological problems or that he was under the care of a psychiatrist while on active duty.

5. Although the applicant may have been hospitalized with a diagnosis of schizophrenia less than 12 months after his discharge, the Board notes that the VA granted him a service connected disability rating for a “nervous condition” and not schizophrenia. While the VA may have determined that there was sufficient evidence available to them to provide a disability rating for the applicant’s nervous condition, there is no evidence in the applicant’s military file, which indicates that condition impacted on his ability to perform his military duties. Nor has the applicant provided any evidence that he even suffered from a nervous condition while in the military.



6. While the VA is permitted to render a finding of service connection for conditions which surface within a year of an individual’s separation from the military, unless that condition contributed to the applicant’s unfitness for military service, there would be no basis to amend his military disability results. Again the Board notes that there is no evidence that the applicant’s July 1990 diagnosis of schizophrenia, or a previous nervous condition impacted on the applicant’s ability to perform his duties. In fact, the Board notes that his chain of command was willing to have the applicant reclassified to another specialty in order to remain on active duty, which tends to support a conclusion that the applicant’s chain of command felt he could continue to serve in the military in some capacity.

7. The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating.

8. 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 __ ___TL __ __BPI___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002079059
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030429
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.	108.00
2.
3.
4.
5.
6.