RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            25 MARCH 2004
      DOCKET NUMBER:   AR2003094532


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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. Luther L. Santiful            |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Thomas e. O'Shaughnessy, Jr.  |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to show that he
was retired by reason of physical disability.

2.  The applicant states, in effect, that he is a 30 percent disabled
veteran which he believes makes him eligible for disability retirement from
the Army.  He states that he believes he is entitled to retirement due to
the fact that his injuries occurred while he was on active duty with the
Army.

3.  The applicant provides copies of his service medical records and copies
of medical treatment records, which occurred after his discharge from the
Army.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant entered
active duty on 20 January 1999.  He completed training and in June 1999 was
assigned to a unit in Germany.

2.  His service medical records indicate that in August 1999 the applicant
was working on a track vehicle and felt “intense lower back pain on the
left side.”  He subsequently participated in a road march, which
exacerbated the condition.

3.  In April 2000 the applicant underwent a Medical Evaluation Board (MEB),
which recorded the applicant’s chief complaint as “back pain.”  The MEB
also noted that the applicant suffered from “spinal asymmetry” and
concluded that diagnosis “complicates the lower back pain.”  The MEB
referred the applicant to a Physical Evaluation Board (PEB).  The applicant
concurred with the findings and recommendation of the MEB.

4.  On 7 June 2000 the applicant underwent an informal PEB.  The PEB
concluded that the applicant’s medical condition prevented satisfactory
performance of duty in his grade and specialty.  However, based on the
Physical Disability Agency policy, his back pain was rated at 0 percent
under Veterans Affairs Schedule for Rating Disability (VASRD) codes 5099-
5003.  The PEB recommended that the applicant be discharged by reason of
physical disability with entitlement to severance pay, if otherwise
qualified.  The applicant concurred with the findings and recommendation of
the PEB and waived his right to a formal hearing.

5.  On 22 July 2000 the applicant was honorably discharged by reason of
physical disability.  He received more than $4000.00 in disability
severance pay.  At the time of his discharge he had 1 year, 6 months, and 3
days of active Federal service.

6.  Subsequent to his separation from active duty he continued to seek and
receive treatment for his back condition.  One of the documents, submitted
by the applicant in support of his request, indicates that the Department
of Veterans Affairs (VA) granted him a combined service connected
disability rating of 30 percent.  His back condition was independently
rated at 20 percent while he also received a rating of 10 percent for
bronchial asthma.

7.  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.

8.  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.

9.  The VASRD is primarily used as a guide for evaluating disabilities
resulting from all types of diseases and injuries encountered as a result
of, or incident to, military service.  Because of differences between Army
and VA applications of rating policies, differences in ratings may result.
Unlike the VA, the Army must first determine whether or not a soldier is
fit to reasonably perform the duties of his office, grade, rank, or rating.
 Once a soldier is determined to be physically unfit for further military
service, percentage ratings are applied to the unfitting conditions from
the VASRD.  Conditions that do not render a soldier unfit for military
service will not be considered in determining the compensable disability
rating unless they contribute to the finding of unfitness.  When an
unlisted condition is encountered, it is rated under a closely related
disease or injury in which not only the functional, but the anatomical
localization and symptomatology are closely analogous.  When an unlisted
disease, injury, or residual condition is encountered, requiring rating by
analogy, the diagnostic code number will be “built-up” using the first two
digits from the part of the scheduled most closely identifying the part, or
system, of the body involved.  The last two digits will be “99” for all
unlisted conditions.

10.  Army Regulation 635-40 states that often a soldier may 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.

11.  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 (VASRD), not all of the
general policy provisions set forth in the VASRD apply to the Army.  The
Army rates only conditions determined to be physically unfitting, because
they adversely affect 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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  Throughout the applicant’s disability processing, and during his
medical consultations leading up to his disability processing, his chief
complaint was back pain.  As such, the PEB was precluded from rendering a
rating high enough to warrant disability retirement.

2.  The fact that the VA may have subsequently granted a higher disability
rating is not evidence that the Army’s rating was in error or unjust.  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 reason or authority for separation.

3.  It is also noted that the VA rendered only a 20 percent rating for the
applicant’s back condition, which, had the Army established the same
rating, would still not have resulted in the applicant’s disability
retirement.  His asthma, which was not mentioned during his disability
processing, was apparently not severe enough to contribute to the
applicant’s inability to perform his duties and as such, was not ratable by
the PEB.

4.  In order to justify correction of a military record the applicant must
show, 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.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LLS __  __LE  ___  __TEO __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            ____Luther L. Santiful______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003094532                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040325                                |
|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.                      |                                        |