MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 April 2003
         DOCKET NUMBER: AR2002081809

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Roger W. Able		Member
Mr. Patrick H. McGann		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 he be medically retired with pay and benefits, in lieu of being discharged by reason of physical disability with severance pay.

APPLICANT STATES: That he believes this change in his status is justified based on the fact that the Veterans Administration has rated him at 30% for his service connected conditions. In support of his application, he submits a Department of Veterans Affairs (DVA) Rating Decision, dated 25 January 2002; Physical Evaluation Board (PEB) Proceedings, dated 5 February 2001; undated Medical Evaluation Board (MEB) Proceedings; Record of Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) Proceedings, dated
11 December 2000; and numerous copies of his service medical records.

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

The applicant entered active duty on 3 April 1996 and trained as a military policeman.

On 21 December 1998, the applicant was issued a permanent 2 physical profile under lower extremities for chronic knee pain. On 21 January 2000, the applicant was issued a permanent 3 physical profile under lower extremities for chronic left knee pain.

On 18 September 2000, a MMRB determined that the applicant's medical condition precluded satisfactory performance in any MOS or specialty code for which the Army has a requirement in a worldwide field environment. The MMRB recommended that the applicant be referred to the MEB/PEB for further processing.

In December 2000, the applicant was diagnosed by a MEB with anterior knee pain or retropatellar pain syndrome and tight lateral retinaculum. The findings and recommendations of the board were approved on 11 January 2001. The applicant agreed with the board's findings and recommendation on 23 January 2001.

On 5 February 2001, a PEB found the applicant physically unfit due to left anterior knee pain with a tight retinaculum, VA Schedule for Rating Disabilities (VASRD) Codes 5099 and 5003. The PEB recommended a rating of 0% and that the applicant be separated from the service with severance pay. On
20 February 2001, the applicant concurred with the findings and waived a formal hearing.

On 5 March 2001, the U.S. Army Physical Disability Agency approved the recommended findings of the PEB.

Accordingly, the applicant was honorably discharged on 2 May 2001 under the provisions of Army Regulation 635-40, paragraph 4-24b(3), for physical disability with severance pay (0%) with entitlement to $15,762. He had served 5 years and 1 month of total active service.

The applicant provided a DVA Rating Decision, dated 25 January 2002, which shows that service connection was granted for internal derangement, left knee (10%), internal derangement, right knee (10%) and chronic lumbosacral spine paravertebral muscle spasm (10 %).

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.

Title 38, United States 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. 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, 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 VA 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, applicable law and regulations, it is concluded:

1. The Board reviewed the DVA Rating Decision provided by the applicant. However, the rating action by the DVA does not necessarily demonstrate any error or injustice in the Army rating. The DVA, operating under its own policies and regulations, assigns disability as it sees fit. Any rating action by the DVA does not compel the Army to modify its rating.

2. An award of a DVA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the DVA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. Furthermore, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

3. The applicant's disability was properly rated in accordance with VASRD. His separation with severance pay was in compliance with law and regulation.

4. The applicant's contention does not demonstrate error or injustice in the applicant's disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

5. 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.

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

SAC____ RWA____ PHM_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002081809
SUFFIX
RECON
DATE BOARDED	20030403
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.0000
2.
3.
4.
5.
6.