RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2005
      DOCKET NUMBER:  AR20040006087


      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. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Lawrence Foster               |     |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 that his discharge with disability severance pay
be changed to physical disability retirement.

2.  The applicant states, in effect, his disability rating decision did not
include all of the available documentation, that there is new evidence
available and that new medical conditions have been shown to exist.

3.  The applicant provides copies of the medical records used in his
Physical Evaluation Board (PEB) and Department of Veteran Affairs (VA)
cases.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's request be given a fair an
equitable review.

2.  Counsel states, in effect,  that he concurs in the applicant's
presentation and requests that all reasonable doubt be resolved in the
applicant's favor.

3.  Counsel provides no additional documentation

CONSIDERATION OF EVIDENCE:

1.  The applicant, a career Reserve Component soldier with approximately 11
years of prior active duty and inactive duty service reentered active duty
on 24 January 2003 when his California Army National Guard unit was ordered
to active duty in support of Operation Enduring Freedom.

2.  The 8 September 2003 narrative medical report for the applicant's
Medical Evaluation Board (MEB) reflects that he had chronic low back pain
dating back to 1993.  His medical history was significant for lower back
injuries in 1994, 1999 and January 2003.  He complained of radiating pain
to all four extremities, aggravated by prolonged standing, sitting,
walking, lifting and bending.  He reported occasional bowel incontinence.
He was found to be neurologically intact and had normal leg strength and
reflexes.  An MRI (magnetic resonance imaging) showed degenerative disc
disease at the L4-5 and L5-S1 levels with asymmetric left side bulging of
the disc at L5-S1.

3.  The applicant indicated a desire to continue on active duty but the MEB
considered this medically contraindicated.  He was not expected to return
to normal functioning and was found to not meet retention medical
standards.  His condition was considered to have existed prior to entry
into the current period of service and to have been permanently aggravated.
 The applicant concurred with the findings and recommendations and his case
was referred to a PEB.

4.  The 3 November 2003 PEB found the applicant physically unfit due to
service aggravated, chronic lower back pain that had existed prior to his
entry into the service (EPTS) for the current active duty period.  The
disability was rated at a net 10 percent and separation with disability
severance pay was recommended.

5.  The applicant did not concur and demanded a formal hearing.  In a
5 November 2003 letter he requested an extension to allow him time to
obtain 1993-94 treatment records from Camp Pendleton, California and
information from his civilian doctors.

6.  An 11 February 2004 letter from the applicant's assigned military
counsel stated that the applicant was withdrawing his demand for a formal
hearing, but that he did not concur with the PEB's findings or
recommendation.

7.  On 8 April 2004 the applicant was discharged due to physical disability
with severance pay .

8.  Effective 9 April 2004 the VA rated the applicant's disability at 40
percent for the lumbar spine, 20 percent for the cervical spine, 10 percent
each for right and left shin splints and 10 percent for radiating pain of
the upper extremities.

9.  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.

10.  Army Regulation 635-40 provides that 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.  Chapter 4 provides that a PEB
may decide that a soldier’s physical defect was EPTS, but must then
determine whether and to what extent the condition was aggravated by
military service.

11.  Title 38, United States Code, sections 1110 and 1131, 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.

DISCUSSION AND CONCLUSIONS:

1.  There is no available evidence to show that the additional disabilities
rated by the VA had any adverse effect on the applicant's ability to
perform his duties.

2.  The Army PEB could rate the applicant's medical conditions only to the
extent that they impaired his ability to perform his duties and only to the
degree that the incapacity had been aggravated by the most recent period of
service.

3.  The VA on the other hand must provide compensation for disabilities
which were incurred in or aggravated by active military service and which
impair the individuals industrial or social functioning.

4.  Accordingly, it is not unusual for these two governmental agencies
arrive at different disability ratings.  They are not measuring the same
thing at all.  Confusion arises from the fact that different rating systems
are used but both use the Veterans Administration Schedule for Rating
Disabilities (VASARD).  However, the way they are applied is governed by
widely differing policies and concepts.

5.  The Army rates only conditions determined to be physically unfitting,
thus compensating the individual for loss of a career; while the VA may
rate any service connected impairment, in order to compensate the
individual for loss of civilian employability.

6.  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.


BOARD VOTE:

___TSK__  __JTM__  __LF____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.





                                  __    Ted S. Kanamine___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006087                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050719                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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