RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 JANUARY 2005
      DOCKET NUMBER:  AR2004106594


      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             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Walter Morrison               |     |Chairperson          |
|     |Ms. Eloise Prendergast            |     |Member               |
|     |Ms. Jeanette McCants              |     |Member               |

      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 physical disability retirement.

2.  The applicant states that he was given a 70 percent disability rating
by the Department of Veterans Affairs (VA) for loss of use of his right arm
incurred in a “Humvee” accident.  He also has other orthopedic conditions
with an 80 percent disability rating.  He was on profile from August 2001
until his discharge, and could not perform his duties.  He has severe
disabilities and should have been retired because of those disabilities.

3.  The applicant provides a copy of a VA rating decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army for 3 years on 19 August 1999,
completed training, to include airborne training, and in February 2000 was
assigned to the 82nd Airborne Division at Fort Bragg, North Carolina.

2.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows
that the applicant sustained multiple lacerations to his hands and forehead
after being involved in a convoy accident on 13 August 2001.  His injuries
were determined to be in line of duty.

3.  The applicant was released from active duty at Fort Bragg on 18 August
2002, his ETS (expiration of term of service).  The applicant signed his DD
Form 214 (Certificate of Release or Discharge from Active Duty).

4.  On 11 April 2003 the VA awarded the applicant a 70 percent service
connected disability rating for residuals, post operative right hand
laceration,      20 percent for residuals, lumbar spine strain, 10 percent
for ganglion cyst, left foot between 4th and 5th metatarsal bones, and 0
percent for bakers cyst, left knee.

5.  The applicant’s medical records are not available to the Board.

6.  Army Regulation 635-40 governs the evaluation for physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability, and states in pertinent part that commanders of
medical treatment facilities who are treating Soldiers may initiate action
to evaluate the Soldier’s physical ability to perform the duties of his or
her office, grade, rank, or rating.  It also states that when a commander
believes that a Soldier of his or her command is unable to perform the
duties of his or her office, grade, rank, or rating because of physical
disability, the commander will refer the Soldier to the responsible medical
treatment facility for evaluation.

7.  The above-mentioned regulation also states that a Soldier whose normal
scheduled date of nondisability retirement or separation occurs during the
course of hospitalization or disability evaluation may, with his or her
consent, be retained in the service until he or she has attained maximum
hospital benefits and completion of disability evaluation if otherwise
eligible for referral into the disability system.

8.  Disability compensation is not an entitlement acquired by reason of
service-incurred illness or injury; rather, it is provided to Soldiers
whose service is interrupted and they can no longer continue to reasonably
perform because of a physical disability incurred or aggravated in service.

9.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his office, rank, grade or rating because of disability
incurred while entitled to basic pay.

10.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of Veterans Affairs (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 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.
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.  A common misconception is that veterans can receive both a
military retirement for physical unfitness and a VA disability pension.  By
law, a veteran can normally be compensated only once for a disability.  If
a veteran is receiving a VA disability pension and the ABCMR corrects the
records to show that a veteran was retired for physical unfitness, the
veteran would have to choose between the VA pension and military
retirement.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding his contentions, there is no evidence and the applicant
has not provided any to show that he was physically unfit at the time of
his release from active duty in August 2002.  He was obviously not referred
into the physical disability evaluation system by either his commanding
officer or by a medical treatment facility, but separated on his ETS.  He
acknowledged the accuracy of that separation by signing his DD Form 214.
Absent evidence to the contrary he was physically fit for separation.

2.  The fact that the VA, in its discretion, has awarded the applicant a
disability rating is a prerogative exercised within the policies of that
agency.  It does not, in itself, establish physical unfitness for
Department of the Army purposes.
The award of VA compensation does not mandate disability retirement or
separation from the Army.  The VA, operating under its own policies and
regulations, may make a determination that a medical condition exists and
that said medical condition reduces or impairs the social or industrial
adaptability of the individual concerned and warrants compensation.
Furthermore, the VA can evaluate a veteran throughout his lifetime,
adjusting the percentage of disability based upon that agency's
examinations and findings.  The Army must find a member physically unfit
before he can be medically retired or separated.

3.  The applicant did not have any medically unfitting disability which
required physical disability processing.  Therefore, there is no basis for
physical disability retirement or separation.

4.  Consequently, the applicant’s request for physical disability
retirement is not warranted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WM__  ___EP __  ___JM __  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.





                                  _____Walter Morrison________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106594                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050113                                |
|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.                      |                                        |


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