RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 08 JANUARY 2004
         DOCKET NUMBER: AR2003089946


         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. Gale J. Thomas		Analyst

The following members, a quorum, were present:

Ms. Kathleen A. Newman		Chairperson
Mr. John T. Meixell		Member
Ms. Linda M. Barker		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 physical disability rating be increased to 30 or 40 percent, and that he be granted a physical disability rating for post traumatic stress disorder (PTSD).

2. The applicant states that his current physical disability rating of 20 percent should be increased to 30 or 40 percent, and that he should be granted a disability rating for PTSD.

3. He further states that his current disability rating is unjust, that he is receiving 100 percent service connected disability rating from the Department of Veterans Affairs (VA) and that the increase he is requesting would be of no monetary gain for him, but would be a better closure for 34 years of service to his country.

4. The applicant provides notes, statements and evaluations from his medical doctor, orthopedic surgeon, psychiatrist, psychologist, his Department of Veterans Affairs (VA) rating decision, copies of his Physical Evaluation Board (PEB) proceedings, and a psychiatric addendum to his Medical Evaluation Board (MEB).

CONSIDERATION OF EVIDENCE:

1. The applicant enlisted in the U.S. Army Reserves in May 1965 and served continuously until he was placed in the Retired Reserve on 16 November 1999, for maximum length of service.

2. On 29 July 1999, the applicant was referred by his physician to a Medical Evaluation Board (MEB) because of his chronic neck, back, knee and ankle pain.

3. The MEB diagnosed the applicant with chronic degenerative arthritis of both ankles, ankylosing spondylitis of the cervical spine causing chronic neck pain, chronic knee pain, chronic low back pain, hypertension, and post traumatic stress disorder. The MEB recommended that the applicant be returned to duty with the permanent profiles of P3, U3, L3, H3, E1 and S1, and duty restrictions of no running, jumping, marching, prolonged standing or situps. The MEB referred him to the PEB.

4. On 13 August 1999, the applicant disagreed with the finding of the MEB and submitted an appeal.



5. On 24 August 1999, the PEB found that based on a review of the medical and personnel evidence of record, and considering the physical requirements for reasonable performance of duties required by his grade and military specialty, that he was fit for duty within the limitations of his profile.

6. On 5 October 1999, a formal PEB found the applicant physically unfit with a 20 percent disability rating for chronic neck, back, ankles, and knee pain, and recommended his separation with severance pay. On 13 October 1999, the applicant appealed the PEB’s decision.

7. On 15 October 1999, after reviewing the applicant’s appeal, the PEB found that no change to the original findings was warranted, and that there was no objective evidence to support his contention that his PTSD was unfitting or that it led to the termination of his military career. His case was forwarded to the U.S. Army Physical Disability Agency (USAPDA) for final processing.

8. On 27 October 1999, the USAPDA noted the applicant’s disagreement with the findings of the PEB and reviewed his entire case file. The Agency concluded that his case was properly adjudicated by the PEB, which correctly applied the rules that govern the Physical Disability Evaluation System in making its determination, and that the PEB’s findings and recommendations were supported by substantial evidence and was therefore affirmed. His case was forwarded to the Physical Disability Branch for final disposition.

9. The applicant’s separation document is not in the available records, however, documents show that on 16 November 1999, the applicant was separated for maximum length of service and transferred to the Retired Reserve.

10. On 5 September 2001, subsequent to the applicant’s separation the VA awarded the applicant service connected disability ratings of 50 percent for post traumatic stress disorder, 20 percent for spine injury with lumbar degenerative changes L5-S1, 30 percent for degenerative spine and cervical with myalgia,
20 percent for right ankle injury, 20 percent for left ankle injury with degenerative changes, 20 percent for degenerative left knee changes, 20 percent for degenerative right knee changes and 10 percent for tinnitus.

11. On 20 February 2002, the VA increased their assigned disability rating for PTSD to 100 percent, and his spine injury and lumbar degenerative changes L5-S1 to 40 percent.






12. 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.

13. 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.

14. Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. 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 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. 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.

DISCUSSION AND CONCLUSIONS :

1. The applicant's disabilities were properly rated by the PEB. The PEB’s recommendation that he be separated with severance pay was in compliance with law and regulation.

2. The PEB determined that there was insufficient evidence to support the applicant’s claim that his medical condition for PTSD was unfitting. He has submitted no compelling evidence which would contradict their findings.

3. The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Rating decisions by the VA do not compel the Army to modify its rating decision.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__ KAN _ __ JTM __ __ LMB __ DENY APPLICATION


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.





                  __Kathleen A. Newman___
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089946
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040108
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.