MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 August 2003
         DOCKET NUMBER: AR2003085619

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas B. Redfern		Member
Ms. Mae M. Bullock		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 discharge with severance pay be changed to a medical retirement.

APPLICANT STATES: That in accordance with Army Regulation 635-40 and being a career soldier, he should have been medically retired. He states that the Department of Veterans Affairs (VA) granted him service connected disability compensation. He submitted a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter from the Department of Veterans Affairs, Winston-Salem Regional Office, dated 6 December 2002.

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

The applicant enlisted in the Regular Army on 15 January 1993.

In June 2002, the applicant was referred to a medical evaluation board (MEB) because of his inability to perform his military duties as a 54B (chemical operations specialist) due to lower back pain. The applicant was evaluated for a chief complaint of degenerative disk disease in his lower back with constant pain and occasional bowel and bladder problems. He was diagnosed with chronic low back pain with lumbar degenerative disk disease and L2-3 disk extrusion. The MEB found him unfit for duty and recommended referral to a physical evaluation board (PEB). On 27 June 2002, the applicant agreed with the findings and recommendation.

On 3 July 2002, an informal PEB found the applicant unfit for military service due to chronic low back pain with a history of a military motor vehicle accident in the line of duty (LOD) under Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5299 and 5295 at a 10 percent disability rating. The PEB recommended that the applicant be separated from the service without disability benefits. The applicant concurred and waived a formal hearing of his case.

On 23 July 2002, the VA awarded the applicant a 20 percent disability rating for urge incontinence and a 10 percent rating for degenerative disc disease, lumbar spine effective 6 November 2002.

On 26 July 2002, the PEB findings were administratively corrected to show entitlement to severance pay.

On 5 November 2002, the applicant was discharged, with severance pay, for disability.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. It states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. 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. 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. These percentages are applied based on the severity of the condition.

Title 38, U. S. 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.

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

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. An informal PEB found the applicant unfit for military service for chronic low back pain at a 10 percent disability rating. As a result, he was discharged from active duty due to physical disability with entitlement to severance pay.

3. The applicant applied to the VA for service connected compensation and was awarded a 30 percent combined disability rating (20 percent for urge incontinence and 10 percent for degenerative disc disease).

4. The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating. 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.

5. Although the applicant contends that he should have been medically retired, he has provided no evidence which shows that his disability processing was in error or unjust, that his diagnoses were incorrect, or that the decisions of the PEB were in error. The VA granted him the same 10 percent disability rating for his back condition as did the Army. While the VA may have determined his urge incontinence impaired his social adaptability, it appears this condition did not make him unfit for military service. Therefore, the Board has determined that the applicant's discharge by reason of physical disability with entitlement to severance pay was proper and correct at the time and there is no basis to change his discharge to a medical retirement.

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

________ ________ ________ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085619
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030807
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	144.0000
2.
3.
4.
5.
6.