RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            1 September 2005
      DOCKET NUMBER:   AR20040008704


      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. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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) and medical retirement.

2.  The applicant states, in effect, that given her disabilities were rated
at
50 percent by the Department of Veterans Affairs (VA) less than a month
after her discharge, and at 80 percent within a year, the decision of the
PEB was incorrect and she should have been medically retired.

3.  The applicant provides VA disability rating decision documents in
support of her application.

CONSIDERATION OF EVIDENCE:

1.  On 14 April 2003, the applicant’s case was evaluated by a PEB convened
at Fort Lewis, Washington.  The PEB found that the applicant was physically
unfit and recommended a disability rating of 20 percent based on low back
pain.  The PEB noted the applicant’s disability rating was less than 30
percent, and indicated that the governing regulation required that Soldiers
with less than a
30 percent disability rating, with less than 20 years of service, be
separated with severance pay.  The applicant was advised that given she had
service connected medical conditions, she should contact the VA to learn
about available benefits such as disability compensation.  The PEB finally
recommended the applicant be separated with severance pay.  The applicant
nonconcurred with the PEB findings and demanded a formal hearing.

2.  On 28 May 2003, a PEB was convened at Fort Lewis, Washington to
consider the applicant’s appeal at a formal hearing, at which the applicant
and her counsel were present.  The formal hearing upheld the original PEB
findings and again rated the applicant at 20 percent based on the medical
evidence and testimony presented.  As a result, the applicant’s separation
with severance pay was again recommended.

3.  On 6 June 2003, the formal PEB was approved on behalf of the Secretary
of the Army, and on 27 July 2003, the applicant was honorably discharged
accordingly.

4.  The separation document (DD Form 214) issued to the applicant upon her
separation confirms she was separated under the provisions of paragraph
4-24b(3), Army Regulation 635-40, by reason of disability with severance
pay.  It also shows she completed a total of 1 year, 1 month and 15 days of
active military service, and held the rank of private first class (PFC) on
the date of her separation.

5.  The applicant provides a VA rating decision document, dated 13 August
2003. This document indicates the applicant was granted service connected
status for the following seven medical conditions and granted the
disability percentage rating indicated: (1) residuals of lumbar spine
laminectomy and interbody fusion: bilateral pars interarticulars fractures
L4 with grade 1 subluxation (claimed as back L-4-L-5 fracture), 30 percent;
(2) radiculopathy, left lower extremity,
10 percent; (3) depression with insomnia, 10 percent; (4) headaches, 10
percent; (5) keratitis eye injury, right eye, 0 percent; (6) residuals of
fracture, right lateral orbital wall, 0 percent; and (7) residuals of
fracture, nasal bone, 0 percent.

6.  The applicant also provides a copy of a VA rating decision document,
dated 21 September 2004, which increased the following disability ratings
as indicated: Number (1) from 30 to 40 percent; Number (3) from 10 to 50
percent; and Number (4) from 10 to 30 percent.

7.  Army Regulation 635-40 establishes the Army Physical Disability
Evaluation System (PDES) 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.

8.  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.  The VA can evaluate a veteran throughout his
lifetime, adjusting the percentage of disability based upon that agency's
examinations and findings.  However, these changes do 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for an increase to the disability rating
assigned by the PEB and medical retirement, along with the supporting
evidence she provided were carefully considered.  However, there is an
insufficient evidentiary basis to support the requested relief.

2.  The evidence of record confirms the applicant was properly processed
through the PDES in accordance with the applicable laws and regulations.
Her case was properly considered by a PEB and her appeal was properly
reviewed at a formal PEB hearing at which she and her counsel were present.
 The results of the formal PEB hearing upheld the findings and
recommendations of the original PEB.

3.  The arguments and medical evidence provided by the applicant and her
counsel were considered and evaluated by both the PEB during its original
review of the applicant’s case and during the appellate process at a formal
PEB hearing, which affirmed the original PEB findings and recommendations.


4.  The applicant’s claim that her disability rating has been increased by
the
VA and that she has continued to be treated by that agency is not in
question.  However, this factor alone does not provide a basis to grant the
requested
relief.  The VA can evaluate a veteran throughout her lifetime, adjusting
the percentage of disability based upon that agency's examinations and
findings.  However, these changes do 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.

5.  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 through the PEB formal hearing
process.  Therefore, there is an insufficient evidentiary basis to support
granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___SK __  ___BJE__  __RTD__  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.





            ___Stanley Kelley ______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040008704                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/01                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2003/07/27                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability-Severance Pay                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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