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ARMY | BCMR | CY2003 | 2003089498C070212
Original file (2003089498C070212.rtf) Auto-classification: Denied




RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: FEBRUARY 24, 2004
         DOCKET NUMBER: AR2003089498


         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. Deyon D. Battle Analyst


The following members, a quorum, were present:

Mr. Raymond V. O’Connor Chairperson
Mr. Lawrence Foster Member
Ms. Margaret V. Thompson 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, in effect, that the medical evaluation that he received while he was in the Army be reevaluated.

2. The applicant states that he was granted a 60 percent service connected disability rating the Department of Veterans Affairs (VA). He states that he suffers from a lower back injury, chronic prostatitis, right knee injury, and hypertension; and that all of his symptoms should have been evaluated by the military.

3. The applicant provides a copy of a VA Rating Decision dated 24 July 2002, in support of his application.

CONSIDERATION OF EVIDENCE:

1. On 15 February 2000, he enlisted in the Army in Baltimore, Maryland, for 4 years in the pay grade of E-2. He successfully completed his training as a ground surveillance systems operator.

2. The facts and circumstances pertaining to the applicant's discharge are not on file. The Certificate of Release or Discharge (DD Form 214) indicates that the applicant was discharged with severance pay, on 15 December 2001, under the provisions of Army Regulation 635-40, by reason of physical disability. He was awarded a 10 percent disability rating. He had completed 1 year, 10 months and 1 day of total active service.

3. In a VA Rating Decision dated 24 July 2002, the applicant was awarded disability ratings of 10 percent service-connection for sprain medial collateral ligament with medial and lateral meniscal degeneration right knee; 20 percent for lumbar disc disease; 10 percent for adjustment disorder for a combined 40 percent disability.

4. Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service. Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation. If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired. 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.   In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career.

5. 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 AND CONCLUSIONS :

1. The medical evidence of record establishes that the applicant was physically unfit at the time of his separation from the service.

2. The contentions set fourth by the applicant do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service. While the applicant, in retrospect, may not agree with the decision made at the time, without sufficient evidence to show that his disability was improperly rated, there is no basis to grant relief in his case.

3. It appears that his separation with severance pay was in compliance with law and regulation and in the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

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 this requirement.


BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

RVO ____ LF _____ MVT _____ 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.





                  ___Raymond V. Connor___
                  CHAIRPERSON




INDEX

CASE ID AR2003089498
SUFFIX
RECON
DATE BOARDED 20040224
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. 177 108.0000.0000/DISABILITY RETIREMENT
2. 179 108.0200.0000/DISABILITY PERCENTAGE
3.
4.
5.
6.


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