RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 September 2005
      DOCKET NUMBER:  AR20040011085


      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. Lester Echols                 |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 his discharge be changed to
physical disability retirement or that his disability rating be increased
to 20 percent and adjudicated so as to be tax free.

2.  The applicant states that his true degree of disability was not
determined during disability separation processing because the Physical
Evaluation Board (PEB) Liaison Officer (LO) did not obtain the necessary
records.  After his formal PEB hearing, an Army Doctor determined that two
shortcomings in the record had deprived him of a higher rating.  Firstly,
no Army doctor had provided a medical evaluation that would justify a 20
percent rating.  Secondly, he needed evidence that he was injured by an
instrumentality of war or had sustained a combat related injury.  In this
regard, he contends that his bad back was the result of a 1987 parachute
jump.  He asked the Physical Disability Agency for a 45 day extension in
order to gather the necessary evidence, but that request was denied.  He
says he is submitting the evidence that the PEBLO should have submitted on
his behalf.

3.  The applicant provides complete copies of his service and medical
records, including periods of prior service; and 30 separate pages of
records or information.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior Regular Army and Army National Guard enlisted
service.  On 6 October 2001 he re-entered active duty as a sergeant in the
Active Guard/Reserve program as a fighting vehicle infantryman in military
occupational specialty (MOS) 11M20.

2.  Medical records show the applicant reported that, following a road
march and an 8 hour shift as gate guard he experienced severe intense
burning leg pain and numbness with tightness in his lower back.  He related
this to an injury sustained in a parachute landing on active duty on 3
August 1989.  On 25 November 2002 the applicant underwent spinal surgery
for herniated discs.  Subsequently, he was placed on a permanent physical
profile and disability processing was initiated.

3.  On 9 September 2003, as part or the treatment for post laminectomy
syndrome the applicant underwent an epidural steroid injection procedure.
On 12 November 2003 he was issued a permanent physical profile of 113111
and
his activities were restricted to stretching, walking and bicycling at his
own pace.  He was permitted to carry and fire a rifle, lift up to 15 pounds
and ride a bicycle for the physical fitness test.

4.  A 22 January 2004 medical evaluation board (MEB) found the applicant
medically unqualified due to low back pain and status post operative L4-5,
L5-S1 diskectomy and recommended that he not be continued on active duty.
The applicant concurred with the board's findings and recommendation.

5.  On 12 March 2004 the applicant appeared with counsel before a formal
PEB which determined that his chronic back pain, status post L4-5, L5-S1
discectomy without neurological abnormality but with limited thoracolumbar
range of motion due to pain with localized tenderness, was disabling and
ratable at 10 percent and recommended separation with disability severance
pay.  The Board also recommended that the disability was not a direct
result of armed conflict or caused by an instrumentality of war or incurred
in the line of duty during a period of war.

6.  The applicant did not concur and the indicated that a rebuttal was
attached, but no such attachment is available.

7.  On 19 April 2004 the applicant was discharged with disability severance
pay.  He had 2 years, 6 months and, 19 days of active duty service during
this final period of active duty; 4 years, 4 months, and 4 days of prior
active duty; and 6 years, 5 months, and 21 days prior inactive duty
service.

8.  The documents submitted separately by the applicant include:

      a.  A 15 August 2004, the same date as the application, letter in
which the applicant states that after the formal hearing Dr. Sam C____
discovered two discrepancies.  One was the absence of certification by an
Army doctor that the applicant met the criteria for a 20 percent disability
rating and the other was that he needed to prove that the disability was
caused by an instrumentality of war or that it was combat related.  The
applicant contends that his injury qualifies because it is related to an 8
August 1997 parachute jump that is reflected in his DA Form 1307, Jump Log.
 He explains that he was advised by phone that a requested 45 day extension
to gather additional evidence to rebut the formal PEB would not be granted.

b.  An undated letter  that the applicant purportedly faxed to the
president of the PEB on 22 March 2004.  He requested an extension of the
allotted time to offer a rebuttal.  It notes that his earlier faxed request
for an extension had not been granted, and offered three exhibits "‘A’, a
range of motion correction from Dr, B____'s MEB evolution, ‘B’ jump log
entry # 24 with date of injury and ‘C’ current list of narcotics for pain."
 He indicated that he was also trying to obtain a physician's documentation
of chronic muscle spasms and abnormal gate, a nerve damage test and medical
records from the Department of Veteran Affairs (VA) to support for his non-
agreement with the PEB findings and recommendations.

      c.  A 3 November 2003 physical profile of 113111.

      d.  An undated letter from Dr. Rick A. K____,a Certified Family
Practitioner, who appears to be a contracted civilian physician at the Fox
Army Health Center, Redstone Arsenal, Alabama.  The doctor relates that,
despite a post-operative course that included physical therapy, epidural
injections, radio frequency thermal coagulation, and daily narcotic
medication, he still experienced activity limiting pain, muscle spasms,
limited range of motion and gait disturbance.  These factors had kept him
from seeking civilian employment.

      e.  Attached to the above is an extract from the Veterans
Administration Schedule for Rating Disabilities (VASRD) with the diagnostic
criteria for a 20 degree rating annotated.  This document is not referenced
in the letter nor is there any indication that the doctor considers this
the appropriate rating for the applicant's condition.

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.  Title 10, United States Code, section 1203, provides for the physical
disability separation with severance pay of a member who has less than 20
years service and a disability rated at less than 30 percent.

11.  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.  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.

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.  The military rates disability based on the degree to which a
condition impacts the individual to serve and not on descriptions of
symptoms.

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 reference the VASARD.  However, the way they are applied
is governed by widely differing policies and concepts.

5.  There is no available evidence that the applicant's disability was
improperly rated.  His submissions were apparently intended to show that,
in the doctor's opinion, the applicant met the VASARD criteria for a 20
percent rating.  However, there is no such assertion by the doctor.
Furthermore,the question at issue is not the nature symptoms or diagnostic
criteria but the extent to which the applicant's condition, as aggravated
by the latest period of service, impaired his performance of duty.

6.  In light of the 10 percent rating his separation with severance pay was
in compliance with law and regulation.

7.  The fact that the VA, in its discretion, may have 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.

8.  The contention that his back condition is related to a 1987 parachute
jump has been carefully considered, but aside from his own assertions to
that effect, there is no substantiating evidence to support that
conclusion.

9.  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:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_LE____   __PMS __  __LGH __  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.





                                  _          Lester Echols___________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011085                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050929                                |
|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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