RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            10 March 2005
      DOCKET NUMBER:   AR20040000566


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Carmen Duncan                 |     |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, in effect, an upgrade of the disability rating
awarded by the Physical Evaluation Board (PEB).

2.  The applicant states, in effect, that the PEB did not properly evaluate
the medical evidence brought before it and established an inadequate
disability rating.  He claims that in 1997, he was diagnosed with right
peripheral vestibular dysfunction.  In its original findings, the PEB did
not recognize this condition as rendering him unfit for duty, despite the
medical evidence indicating otherwise.  He states that he believed the PEB
decision regarding this condition was the result of incomplete medical
documentation provided by the evaluating physician. However, after
nonconcurring with the PEB findings, he provided additional medical
evidence, which he also believes the PEB did not fully evaluate, and as a
result failed to grant a proper disability rating.

3.  The applicant further states that he believes the PEB erred in the
disability rating it granted for his lower back condition.  The PEB granted
a 10 percent rating for this condition, which he believes was not based on
the most accurate medical information available to them at the time.

4.  The applicant claims that he initially requested a formal PEB hearing;
however, on the advise of his legal counsel, he instead submitted a written
appeal to address only the vestibular dysfunction.  However, the United
States Army Physical Disability Agency (USAPDA) after reviewing his appeal
found in favor of the PEB.  Finally, he disagrees with the PEB
determination that these disabilities (Vestibular dysfunction and
intervertebral disc syndrome) are not combat related.  He states that based
on the legal definition, he believes his disabilities should be considered
to be combat related because they occurred while he was engaged in
extrahazardous duty with the 82nd Airborne Division.

5.  The applicant provides the following documents in support of his
application:  Self-Authored Statement, Separation Document (DD Form 214),
USAPDA Memorandum, Flight Surgeon Aeromedical Summary with Associated
Medical Treatment Records, Two Page Continuation of DA Form 3947 (Medical
Evaluation Board (MEB) Proceedings) Extracts and Associated Medical
Evaluation Records.

CONSIDERATION OF EVIDENCE:

1.  On 1 October 2003, the applicant’s case was evaluated by a PEB convened
at Walter Reed Army Medical Center (WRAMC), Washington D.C.  The PEB found
that the applicant was physically unfit and recommended a disability rating
of 40 percent based on his diagnosed conditions of Panic Disorder, Chronic
Back Pain, and Migraine Headaches.

2.  The PEB noted that the applicant had a right vestibular weakness, which
was aggravated by the migraine headaches.  However, it found this condition
was not unfitting for further service and therefore it was not rated.

3.  On 14 October 2003, the applicant nonconcurred with the PEB findings
and submitted a written appeal with his supporting medical evidence.  On 23
October 2003, the USAPDA, after reviewing the applicant’s entire case,
concluded that his case was properly adjudicated by the PEB, which
correctly applied the rules that govern the Physical Disability Evaluation
System (PDES) in making its determination.  The USAPDA found the PEB
findings and recommendations were supported by substantial evidence and
therefore were affirmed.

4.  On 30 December 2003, the applicant was honorably retired, by reason of
physical disability, temporary, under the provisions of paragraph 4-24b,
Army Regulation 635-40.  The DD Form 214 he was issued confirms he
completed a total of 8 years, 6 months and 20 days of active military
service and held the rank of captain.

5.  The applicant provides medical evaluations and treatment records dated
from 1997 through September 2003.  These documents outline his medical
history and provide information regarding the treatment of the medical
conditions evaluated by the PEB.

6.  Army Regulation 635-40 establishes the Army Physical Disability
Evaluation System and sets forth policies, responsibilities, and procedures
that apply in determining whether a soldier is unfit because of physical
disability to reasonably perform the duties of his or her office, grade,
rank, or rating.

7.  Title 38, United States Code, sections 1110 and 1131, permits the
Department of Veterans Affairs (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.
8.  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.  The VA can evaluate a veteran
throughout his lifetime, adjusting the percentage of disability based upon
that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for an increase to the disability rating he was
assigned by the PEB and the supporting evidence he provided were carefully
considered.  However, the evidence of record confirms he was properly
processed through the PDES in accordance with the applicable laws and
regulations.  His case was properly considered by a PEB and his appeal was
properly reviewed by the USAPDA.

2.  The arguments and medical evidence provided by the applicant were
considered and evaluated by both the PEB during its original review of the
applicant’s case and by the USAPDA during the appellate process.  Further,
the USAPDA, after considering the applicant’s appeal and the medical
evidence he provided, affirmed the PEB findings and recommendations.  It
confirmed that the PEB correctly applied the rules that govern the PDES in
making its determination on the applicant’s case.

3.  The evidence of record provides no information that would support the
applicant’s assertion that his disabilities should be considered combat
related, and he has failed to provide independent evidence to support this
claim.  Service in an organization in and of itself does support a combat
related determination.  The clear intent of the law is to apply this
determination only in cases of disability that are incurred as a direct
result of combat action.

4.  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
provide any new medical evidence that would call into question the original
decision of the PEB or the final affirmation of the USAPDA.  Therefore,
there is an insufficient evidentiary basis to support granting the
requested relief.

5.  The applicant is advised that he may seek further evaluation of his
conditions through the VA.  While both the Army and the VA use the VA
Schedule for Rating Disabilities (VASRD), not all of the general policy
provisions set forth in the VASRD apply to the Army.  The Army rates only
conditions that are determined to be physically unfitting for further
military service, thereby compensating the individual for the loss of his
or her military career.

6.  The VA, however, may rate any service connected impairment, thus
compensating for loss of civilian employment.  Further, the VA may award
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.  It can also evaluate a veteran
throughout his lifetime, adjusting the percentage of disability based upon
that agency's examinations and findings.  However, any change in the
disability rating granted by the VA would not call into question the
application of the fitness standards and the disability ratings assigned by
proper military medical authorities during the applicant’s processing
through the Army PDES.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JNS _  ___CD __  ___LE___  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.




            ____John N. Slone_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000566                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/10                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2003/12/30                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |TDRL                                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  177  |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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