RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         30 NOVEMBER 2004
      DOCKET NUMBER:  AR2004104982


      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. Kenneth H. Aucock             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Shirley Powell                |     |Member               |
|     |Mr. Patrick McGann                |     |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 physical disability retirement.

2.  The applicant states that his status should be changed to physical
disability retirement because the Department of Veterans Affairs (VA)
increased his disability rating to 70 percent.

3.  The applicant provides a copy of an 11 August 2003 VA rating decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered on active duty on 30 July 1986 and was released
upon his ETS (expiration of term of service) on 29 July 1989.  He was a
member of the Army Reserve from 29 July 1989 to 22 November 1993.

2.  On 31 January 1994 the applicant enlisted in the Army Reserve Delayed
Entry Program (DEP) for 8 years.  He was discharged from that program upon
his enlistment in the Regular Army for 3 years on 3 March 1994.  He was
trained as a light wheeled vehicle mechanic and served in that capacity on
continuous active duty until his discharge in 2003.

3.  The applicant's NCO (noncommissioned officer) evaluation reports
beginning in August 1997 show, with one exception, that he passed the Army
physical fitness test.  The exception being the one-year report ending in
December 1999, which shows that he had a physical profile.  The reports for
the ensuing three years all show that he passed the physical fitness tests,
the last time in October 2002.

4.  The applicant was discharged at Fort Carson, Colorado on 16 May 2003 in
the rank of sergeant.  He had over 12 years of active service.  He was
discharged because of a disability under the provisions of Army Regulation
   635-40, and received severance pay in the amount of $54,799.20.

5.  The applicant's medical records, to include the Medical Evaluation
Board (MEB) and Physical Evaluation Board (PEB) proceedings are not
available.

6.  In its 11 August 2003 rating decision, the VA informed the applicant
that it had deferred its decision on his left shoulder, low back, and
bilateral knees pending a more thorough VA examination, and that based upon
a review of the evidence and additional VA examination, it awarded him a 10
percent service connected disability rating for low back pain with muscular
ligamental strain, a 10 percent rating for left shoulder impingement with
osteophyte formation, a 10 percent rating for retropatellar pain syndrome
to his right knee with ligamental tendonitis, and a 10 percent rating for
retropatellar pain syndrome to his left knee with ligamental tendonitis.

7.  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 office, grade, rank, or
rating.  It provides for medical evaluation boards, which are convened to
document a Soldier’s medical status and duty limitations insofar as duty is
affected by the Soldier’s status.  A decision is made as to the Soldier’s
medical qualifications for retention based on the criteria in AR 40-501,
chapter 3.  If the MEB (Medical Evaluation Board) determines the Soldier
does not meet retention standards, the board will recommend referral of the
Soldier to a PEB (Physical Evaluation Board).

8.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier’s particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.

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

10.  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.  As indicated above, the applicant's medical records, and MEB and PEB
proceedings are not available to the Board.  Nevertheless, absent evidence
to the contrary, it is presumed that the applicant's disability discharge
with severance pay was correct.

2.  The rating action by the VA does not show that the applicant has been
awarded a 70 percent disability rating.  It is understood, however, that he
may have received a prior service connected disability rating prior to the
11 August 2003 VA rating decision.  Nonetheless, the rating action by the
VA does not necessarily demonstrate any error or injustice in the Army
rating.  The VA, operating under its own policies and regulations, assigns
disability ratings as it sees fit.  Any rating action by the VA does not
compel the Army to modify its rating.  The VA awards ratings because a
medical condition is related to service, i.e., service-connected.  It
awards ratings 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. Consequently, due to the two concepts
involved, the applicant's medical condition, although not considered
medically unfitting for military service at the time of processing for
separation, discharge or retirement, may be sufficient to qualify him for
VA benefits based on an evaluation by that agency.  Furthermore, the VA can
evaluate a veteran throughout his lifetime, adjusting the percentage of
disability based upon that agency's examinations and findings.

3.  The applicant does not dispute the disability rating awarded by the
Army or his discharge with severance pay on 16 May 2003, but contends only
that he should be medically retired because of an increase by the VA in his
disability rating.  His argument is specious.  By the same token then,
should the VA adjust the percentage of his disability downward at some
future date because his condition had improved, then in line with the
applicant's reasoning, the Army should then do likewise, for instance,
removing him from the physical disability retired list, if in that status
and his improved condition so warranted.

4.  Despite the absence of medical evidence, there is no doubt to be
resolved in the applicant's favor.  He has offered no evidence or any good
argument to show that the Army's decision in his case was incorrect or
unjust.  His request is denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JNS __  __SP ___  ___PG __  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                 |AR2004104982                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041130                                |
|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.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]