MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 19 AUGUST 2003
         DOCKET NUMBER: AR2002081807

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret V. Thompson		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: That his records be corrected to show that he was retired by reason of physical disability.

APPLICANT STATES: In effect, that he believes the Physical Evaluation Board (PEB) made a mistake in their decision to separate him with severance pay, rather than retire him as a result of his disabilities. He states that the PEB should have given him a 30 percent disability rate and retired him. He notes that he received a 30 percent disability rating from the Department of Veterans Affairs and is currently waiting on the results of an appeal of that decision. He states that because of his disabilities he will not be able to obtain a retirement from any other source.

In support of his request he submits a summary listing of his treatment by the Department of Veterans Affairs.

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

He entered active duty in July 1986 and received training in the transportation field. By April 1993 he had attained the rank of staff sergeant.

In August 1997 he was issued a permanent P-3 profile for his lower extremities as a result of bilateral retro-patella [knee] pain syndrome.

The profile noted that the applicant could walk, run, climb, drive and march as long as he could tolerate the activities and that he should avoid repetitive climbing such as mounting and dismounting vehicles. The profile also permitted the applicant to use a knee brace when necessary.

As a result of the applicant’s permanent profile, he underwent a MOS (military occupational specialty)/Medical Retention Board (MMRB) in December 1997.

The MMRB concluded that the limitations of the applicant’s permanent profile were “so prohibitive they preclude retraining and reclassification into any PMOS [primary military occupational specialty] which the Army has a requirement.”

As a result of the MMRB conclusions, the applicant was referred for disability processing.

In May 1998 the applicant underwent a Medical Evaluation Board (MEB).

The MEB concluded the applicant suffered from bilateral retro-patella pain syndrome and chronic low back pain, and recommended he be referred to a



PEB. His physical examination, conducted as part of the MEB noted that the applicant had an 11 year history of back pain stemming from a fall from a military vehicle. The evaluating physician indicated the applicant reported knee pain off and on throughout his military career and that the pain was aggravated by prolonged sitting, running, marching, etc. The examination noted that the applicant showed no evidence of instability in his knees, no history of incontinence, and only minimal sacral paresthesias. There was no swelling or effusion to either knee and while he did have decreased lumbar flexion, there was no tension sign. The applicant had a normal motor exam, and normal reflexes.

The reverse side of the applicant’s MEB, which would have contained information regarding the applicant’s concurrence or nonconcurrence with the MEB finding was not included in records available to the Board, or provided by the applicant.

In May 1998 the applicant underwent a PEB.

The PEB concluded that the applicant’s chronic lower back and knee pain rendered him unfit for continued service and recommended that he be separated with entitlement to disability severance pay if otherwise qualified. The PEB rated the applicant’s chronic pain at 20 percent. Again, the reverse portion of the PEB document, which would have contained the applicant’s concurrence or nonconcurrence with the PEB and indicated if he had waived his entitlement to a formal hearing, was not available to the Board.

However, the fact that his records do not contain evidence of a formal hearing tends to indicate that the applicant concurred with the PEB and waived his entitlement to a formal hearing.

On 18 July 1998 the applicant was discharged by reason of disability and received more than $46,000 in disability severance pay.

The documents submitted by the applicant from his Department of Veterans Affairs records indicated that he has been routinely seen by officials at the Department of Veterans Affairs for a variety of ailments, including his back and knee pain, and that the Department of Veterans Affairs has granted him a combined disability rating of 30 percent for his “back strain” and for “condition of the skeletal system.”

Army Regulation 635-40 states that often a soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain. Inasmuch as




there are no objective medical laboratory testing procedures used to detect the existence of, or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.

Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. 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. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability. Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension. By law, a veteran can only be compensated once for a disability. If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

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 evidence of record confirms that the applicant’s medical conditions, which resulted in his inability to continue his military service, was chronic pain in his lower back and knees. As such, the PEB was precluded from rendering a rating high enough to warrant disability retirement.

2. The fact that the Department of Veterans Affairs, which is not limited by the requirements of Army Regulation 635-40, may have rated those same conditions at a higher rate, does not necessarily demonstrate any error or injustice in the Army rating.




3. The Department of Veterans Affairs, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by that department does not compel the Army to modify its rating.

4. 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 that requirement.

5. 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

__FNE__ __MVT __ __JTM___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002081807
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030819
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.