MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 25 September 2003
                  DOCKET NUMBER: AR2003084381

         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. John N. Slone		Chairperson
Ms. Regan K. Smith		Member
Ms. Linda D. Simmons		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 military records be corrected to show a disability rating of 20 percent instead of 10 percent.

APPLICANT STATES: In effect, that a formal Physical Evaluation Board (PEB) increased his disability rating to 20 percent in 1985 and he received severance pay in the amount of $5146.20. He contends that he has not received any subsequent severance payments since his discharge. He also states that the severance pay was taxed and recouped before he received his first Department of Veterans Affairs (DVA) payment. In support of his application, he submits a letter of explanation, dated 2 January 2003; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a letter, dated 27 January 2003, from the Review Boards Agency; a letter, dated 13 November 2002, from the applicant to the Secretary of the Army; DVA documentation; service personnel records; and service medical records.

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

The applicant entered active duty on 17 August 1982 for a period of 3 years. He successfully completed basic combat training and advanced individual training in military occupational specialty 76W (petroleum supply specialist).

On 12 May 1985, a Medical Evaluation Board (MEB) diagnosed the applicant with mechanical back pain. The MEB recommended referral to a PEB for final disposition.

On 28 June 1985, a PEB found the applicant physically unfit due to mechanical back pain, VA Schedule for Rating Disabilities (VASRD) Code 5295. The PEB recommended a rating of 10 percent and that the applicant be separated from the service with severance pay. On 10 July 1985, the applicant did not concur with the findings and recommendations and demanded a formal hearing.

On 8 August 1985, a formal PEB found the applicant physically unfit due to mechanical back pain, VASRD Code 5295. The formal PEB recommended a combined rating of 20 percent and that the applicant be separated from the service with severance pay. On 23 August 1985, the applicant concurred with the recommendation.

On 12 September 1985, the U.S. Army Physical Disability Agency approved the recommended findings of the formal PEB.

Accordingly, the applicant was honorably discharged on 21 October 1985 under the provisions of Army Regulation 635-40, paragraph 4-24e(3), for physical



disability with severance pay (20 percent) with entitlement to $5146.20. He had served 3 years, 2 months and 5 days of total active service.

Item 18 (Remarks) on the applicant's DD Form 214 shows that he received severance pay in the amount of $5146.20.

1st Infantry Division (Mech) and Fort Riley Orders 191-3, dated 1 October 1985, show the applicant was discharged on 21 October 1985 with a 20 percent disability rating.

The applicant provided DVA documentation which shows he was initially awarded a 10 percent evaluation by the DVA for residuals of a lumbar spine injury which was subsequently increased to 40 percent. This letter also states that the disability severance pay that the applicant received from the Department of Defense at the time of his discharge was recouped before he received his first DVA payment.

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. Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

Title 10, United States Code, section 1212(c) states that the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the DVA. Thus, DVA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

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 Board considered the applicant's request that his military records be corrected to show a disability rating of 20 percent instead of 10 percent.





However, the applicant's military records show that he was discharged on
21 October 1985 by reason of physical disability with severance pay (20 percent) with entitlement to $5146.20.

3. The Board considered the applicant's contention that he has not received any subsequent severance payments since his discharge. However, severance pay is a one-time payment upon discharge.

4. The Board considered the applicant's contention that his severance pay was taxed and recouped before he received his first DVA payment. Evidence of record shows the applicant was diagnosed with mechanical back pain and was discharged by reason of physical disability from the Army for this back condition. Evidence of record also shows the applicant was awarded compensation from the DVA for the same disability (residuals of a lumbar spine injury). The Board notes that the governing law states that the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the DVA. Thus, DVA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

5. The Board notes the DVA documentation provided by the applicant which shows he was initially awarded a 10 percent evaluation for his back condition and subsequently this rating was increased to 40 percent. 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. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.

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

JNS____ RKS____ LDS_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084381
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030925
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.0200
2.
3.
4.
5.
6.