RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:
      DOCKET NUMBER:  AR20040009354


      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. David S. Griffin              |     |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, that the Physical Evaluation Board
(PEB) findings and recommendations in her case be changed to show a
recommended disability percentage of 30 percent and that she be permanently
retired for disability.

2.  The applicant states, in effect, that:

      a.  she regards the rating decision made by the PEB as unfair because
she was not rated for her lower back condition;

      b.  when she was initially rated at zero percent by the PEB, she was
still undergoing testing for her lower back;

      c.  that she was assured by her counselor that because she was still
undergoing treatment the PEB would return her to duty until she completed
treatment or was rated by the PEB;

      d.  that she was rated 10 percent by the PEB but not for her back
condition;

      e.  that she was not withdrawing her case from the PEB for a new
condition, but a condition that was diagnosed (lumbar spondylosis) after
medical tests had been performed;

      f.  the Department of Veterans Affairs (DVA) granted her a 40 percent
rating for her spondylosis and central disc herniation; and

      g.  she does not feel as though the 10 percent rating for her lower
extremities was a fair rating because she has discovered that most of the
stress fractures have developed into arthritis and degenerative joint
diseases.

3.  The applicant provides a copy of:

      a.  the Medical Evaluation Board (MEB) Proceedings, dated 1 May 2003;

      b.  the informal PEB Proceedings, dated 12 May 2003;

      c.    a Radiologic Examination Report for a magnetic resonance
imaging (MRI) performed on 6 June 2003;

      d.  the formal PEB Proceedings, dated 26 June 2003;

      e.  the applicant's rebuttal, dated 8 July 2003, to her formal PEB;

      f.  PEB letter, dated 9 July 2003, that was a response to the
applicant's rebuttal dated 8 July 2003;

      g.  U.S. Army Physical Disability Agency (USAPDA) letter, dated 15
July 2003, that was in response to the applicant's rebuttal dated 8 July
2003; and

      h.  DVA letter, dated 23 June 2004, that tells the applicant about
her entitlement amount and payment start date and provided her with a copy
of
DVA Rating Decision, dated 27 May 2004.

CONSIDERATION OF EVIDENCE:

1.  When the applicant's military records were received from the National
Personnel Records Center in St. Louis, Missouri, they were incomplete.  The
primary military personnel records available to this Board were provided by
the applicant and are sufficient for the Board to conduct a fair and
impartial review of this case.

2.  The applicant's available military records show that she was
commissioned as a 2nd lieutenant on 20 December 2001 in the U.S. Army
Reserve (USAR) and  she entered active service that same date.

3.  On 1 May 2003, an MEB referred the applicant to a PEB for the following
conditions:

      a.  chronic bilateral tibial stress fractures;

      b.  chronic bilateral hip pain;

      c.  chronic bilateral foot pain; and

      d.  chronic bilateral knee pain.

4.  The MEB indicated that the applicant did present views in her own
behalf.  However, a copy of a summary of her comments was not available for
the Board's review.

5.  On 12 May 2003, an informal PEB found the applicant unfit for duty for
"Bilateral lower extremity pain due to stress reactions/fractures without
loss of joint motion and with joint stability.  Unable to tolerate the
rigors of military training.  Rated for pain, moderate/intermittent."
6.  The PEB recommended a combined rating of zero percent and that the
applicant be separated with severance pay if otherwise qualified.

7.  On 22 May 2003, the applicant indicated that she did not concur with
the proceedings, requested a formal hearing with a personal appearance and
that a regularly appointed counsel represent her.

8.  A Radiologic Examination Report for an MRI given on 6 June 2003 stated,
under impression, that the applicant had "lumbar spondylosis worse at L4-5,
where a tiny central protrusion minimally contacts both L5 roots."

9.  On 20 June 2003, the applicant was promoted to 1st lieutenant.

10.  On 26 June 2003, a formal PEB found the applicant unfit for duty for
"bilateral lower extremity pain secondary to stress reactions/fractures,
requiring Tylenol or Motrin on a daily basis (no narcotics), with
diminution in capacity to carry out some specified daily activities.  Pain
is considered frequent in nature."

11.  The formal PEB recommended a combined rating of 10 percent and that
the applicant be separated with severance pay if otherwise qualified.

12.  On 8 July 2003, the applicant indicated that she did not concur with
the findings of the formal PEB and provided a statement of rebuttal.

13.  In her rebuttal, the applicant stated that the reasons for her
rebuttal involved the existence of three existing medical conditions that
she was currently being treated for.  She stated that she is awaiting the
results of a biopsy.  She also stated that she is seeking follow up
treatment and rehabilitation for her lower back.  She further stated that
she is undergoing testing for angioedema.  The applicant further stated
that these conditions were manifested during her service.

14.  On 9 July 2003, the formal PEB provided a response to the applicant.
The applicant was advised that the PEB only adjudicates medical conditions
referred on the DA Form 3947 (Medical Evaluation Board Proceeding)
forwarded by the medical treatment facility (MTF).  The PEB also advised
the applicant that if she disagreed with the MEB findings of 5 May 2003,
she should have indicated her disagreement at that time.

15.  The PEB recommended that the applicant immediately discuss her concern
with the her doctor at the MTF, who may, if medically indicated and
appropriate, withdraw her case for further evaluation.  The PEB further
advised the applicant that it would be inappropriate for the MTF to
withdraw her case unless the condition was serious enough to separately
fail retention standards and possibly be unfitting.

16.  On 15 July 2003, the USAPDA noted the applicant's disagreement and
reviewed her entire case.  The USAPDA concluded that the applicant's case
was properly adjudicated by the formal PEB which correctly applied the
rules that govern the Physical Disability Evaluation System in making its
determination.  The USAPDA further determined that the findings and
recommendations of the PEB were supported by substantial evidence and
therefore were affirmed.

17.  On 17 December 2003, the applicant was discharged due to disability,
with severance pay.  She had completed 1 year, 11 months and 28 days of
active service which was characterized as honorable.

18.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) with a separation date of 17 December 2003 indicated that she
had 10 months and 7 days of prior active service.

19.  On May 27, 2004, the DVA granted the applicant a 40 percent rating for
residuals, lumbar spine spondylosis and minimal central disc herniation at
L4-5.
This evaluation was based on a DVA examination of 14 April 2004.

20.  Chapter 3 (Retention Medical Fitness Standards) of Army Regulation
40-501 (Standards of Medical Fitness), as amended, provides the standards
for medical fitness for retention and separation, including retirement.
Soldiers with medical conditions listed in this chapter should be referred
for disability processing.

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) provides, in pertinent part, that the medical treatment
facility commander with the primary care responsibility will evaluate those
referred to him and will, if it appears as though the member is not
medically qualified to perform duty or fails to meet retention criteria,
refer the member to an MEB.  Those members who do not meet medical
retention standards will be referred to a physical evaluation board (PEB)
for a determination of whether they are able to perform the duties of their
grade and military specialty with the medically disqualifying condition.

22.  Army Regulation 635-40 states, in pertinent part, that the mere
presence of an impairment does not, of itself, justify a finding of
unfitness because of physical disability.  The overall effect of all
disabilities present in an individual whose physical fitness is under
evaluation must be considered both from the standpoint of how the
disabilities affect the individual’s performance, and requirements which
may be imposed on the Army to maintain and protect him or her during future
duty assignments.  All relevant evidence must be considered in evaluating
the fitness of a member.  When a member is referred for physical
evaluation, evaluations of the performance of duty by supervisors may
provide better evidence than a clinical estimate by the Soldier's physician
describing the physical ability to perform the duties of the office, grade,
rank, or rating.  Thus, if evidence establishes that the Soldier adequately
performed the normal duties of his or her office, grade, rank or rating
until the time of referral for physical evaluation, the Soldier might be
considered fit for duty, even though medical evidence indicates the
Soldier's physical ability to perform such duties may be questionable.

23.  Title 38, United States Code, permits the DVA to award compensation
for disabilities which were incurred in or aggravated by active military
service.  However, an award of a DVA rating does not establish error or
injustice in the Army not separating the individual for physical unfitness.
 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.  
 
24.  The DVA, 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 DVA to award a veteran a disability
rating when the veteran was not separated due to physical unfitness.
Furthermore, the DVA can evaluate a veteran throughout his or her lifetime,
awarding and/or adjusting the percentage of disability of a condition based
upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the rating decision made by the PEB was
unfair because the PEB did not rate her back condition.  She contends that
she should be found to be 30 percent disabled and that she be permanently
retired for disability.

2.  When the applicant expressed her concerns with three new medical
conditions, including her back condition, in her rebuttal to the formal
PEB, she was advised to immediately discuss those concerns with her doctor
at the MTF.  There is no evidence of record that the applicant did so.

3.  There is no evidence of record that the MTF determined the applicant's
back condition was serious enough to separately fail retention standards
and possibly be unfitting.  Therefore, the MTF did not withdraw the case
for further evaluation.

4.  The record does not contain any evidence and the applicant has not
submitted any evidence, which would show that she could not perform the
duties in her area of concentration (AOC) due to her back condition.

5.  The DVA rating for the applicant's back condition was based on a DVA
examination given 4 months after the applicant's discharge and does not
necessarily reflect her condition on the date of her discharge.  The DVA
can evaluate a veteran throughout his or her lifetime, adjusting the
percentage of disability based upon that agency’s examinations and
findings.

6.  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.  

7.  The DVA awards disability ratings to veterans for conditions that it
determines were incurred during military service and subsequently affect
the individual’s employability.

8.  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.  Therefore, an award of a higher DVA
rating does not establish error or injustice in the Army rating.

9.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___sk___  ___rtd ___  ___bje___  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                 |AR20040009354                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050901                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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