RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                                        03 NOVEMBER 2005
      DOCKET NUMBER:                         AR20050000058


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Thomas Howard                 |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 by reason of physical
disability be voided and that he be Retired by reason of physical
disability.

2.  The applicant states, in effect, that the Medical Evaluation Board
(MEB) did not take into consideration his behavioral health records other
than a mention of them as he had related to the physician.  However, the
Department of Veteran Affairs (VA) did take them into consideration and
awarded him compensation for his mental health condition.

3.  The applicant provides a copy of his VA Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records, although somewhat incomplete, show that he
served on active duty from February 1986 to February 1989, when he was
honorably released from active duty (REFRAD) and was transferred to the
United States Army Reserve (USAR).

2.  On 15 January 1997, he enlisted in the Regular Army for a period of 3
years and the Warrant Officer Flight Training Enlistment Option.  He
successfully completed training and was honorably discharged on 13 March
1997 to accept an appointment as a warrant officer in the Army.

3.  He was appointed as a warrant officer one (WO1) on 14 March 1997 with a
concurrent call to active duty.  He was transferred to Fort Polk, Louisiana
and was promoted to the rank of Chief Warrant Officer Two (CW2) on 14 March
1999.

4.  On 6 November 2003, he appeared before a Medical Evaluation Board (MEB)
to determine if he was fit for duty based on a diagnosis of chronic
myofascial pain, low back region that was deemed medically unacceptable.
The MEB also considered that in September 2003, he had been seen at the
Behavioral Health Clinic for anxiety and depression due to the stressors he
had undergone relative to his back problem.  The MEB determined that he
should be referred to a Physical Evaluation Board (PEB).  The applicant
indicated that he did not desire to continue on active duty and that he
concurred with the findings and recommendations of the MEB on 21 November
2003.

5.  The applicant was also counseled about the physical disability
evaluation system process and was informed that the only conditions ratable
by the Army are those that made him unfit for duty.  Additional diagnoses
listed in the MEB that are not unfitting are not rated by the PEB.  He was
advised to file a claim with the VA for all service-connected impairments
because the VA could rate any service-connected impairments.  He was also
advised that the Army’s rating are permanent upon final disposition, but
that the VA’s rating may fluctuate with time. He acknowledged that he had
been counseled on 21 November 2003.

6.  On 25 November 2003, a PEB convened at Fort Sam Houston, Texas, to
determine if his medical and physical impairment prevented reasonable
performance of his duties required by his grade and military specialty.
The diagnosis considered was chronic myofacial, low back pain, without
neurologic abnormality, combined thoracolumbar range of motion 265 degrees,
with localized tenderness.  The PEB found him physically unfit and
recommended that he be discharged with severance pay and a 10% disability
rating.

7.  On 16 December 2003, the applicant nonconcurred with the findings of
the PEB and demanded a formal hearing with a personal appearance before the
PEB.  However, on 8 January 2004, he changed his election and concurred
with the findings of the PEB and waived his right to a formal hearing of
his case.

8.  The findings and recommendations of the PEB were approved by the
appropriate authority on 9 January 2004 and on 31 March 2004 he was
honorably discharged by reason of physical disability with a 10% disability
rating and entitlement to severance pay.  He had served 11 years, 2 months,
and
12 days of total active service.

9.  The applicant submitted a claim for VA compensation on 24 April 2004
and on 13 September 2004 the VA granted him a 70% combined service-
connected disability compensation for adjustment disorder with mixed
anxiety and depressed moods (70%) and degenerative disk disease of the
thoracic spine (10%).  The effective date of his compensation was 1 May
2004.

10.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his or her office, rank, grade or rating because of
disability uncured while entitled to basic pay.

11.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement,
or Separation, paragraph 3-2b, provides that disability compensation is not
an entitlement acquired by reason of service-incurred illness or injury;
rather, it is provided to soldiers whose service is interrupted and they
can no longer continue to reasonably perform because of a physical
disability incurred or aggravated in service.

12.  Army Regulation 635-40 also provides that when a member is being
separated by reason other than physical disability, his or her continued
performance of assigned duty commensurate with his or her rank or grade,
until he or she is scheduled for separation or retirement, creates a
presumption that he or she is fit.  This presumption can be overcome only
by clear and convincing evidence that he or she was unable to perform his
or her duties for a period of time or that acute grave illness or injury or
other deterioration of physical condition, occurring immediately prior to
or coincident with separation, rendered the member unfit.

13.  Title 38, United States Code, sections 310 and 331, permits the VA to
award compensation for a medical condition which was incurred in or
aggravated by active military service.  An award of a 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 affects the individual's employability.

DISCUSSION AND CONCLUSIONS:

1.  The mere presence of impairment does not, of itself justify a finding
of physical unfitness and medical retirement from the Army.

2.  The fact that the VA has awarded the applicant a disability rating for
adjustment disorder with mixed anxiety and depressed moods does not
establish physical unfitness, or the degree thereof for Department of the
Army purposes.  Although there is no evidence to suggest that his
adjustment disorder prevented him from performing his duties, each
agency/department is bound to operate within its own rules, regulations,
and policies.  The granting of a compensable award by one agency is not
tantamount to a lesser, equal or more enhanced award by the other agency.

3.  The fact that the VA, in its discretion, has awarded the applicant a
higher disability rating is a prerogative exercised within the policies of
that agency.  It does not, in itself, establish any entitlement to
additional disability compensation or medical retirement from the
Department.



4.  Disability ratings assigned by the VA are based upon the establishment
of service-connection of the diagnoses.  This rating may fluctuate from
zero to 100 percent based on the former service member's physical condition
at the time of each physical examination.

5.  Army disability ratings are not based upon the same principles as the
VA and, consequently, the ratings awarded by the VA may differ from those
awarded by the Army.

6.  Accordingly, he was properly discharged in accordance with the
applicable laws and regulations with no indication of any violations of any
of his rights.

7.  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

____TH__  ____JI__  ___CD __  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.




            ____Thomas Howard__________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050000058                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051103                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |20040331                                |
|DISCHARGE AUTHORITY     |AR 635-40. . . . .                      |
|DISCHARGE REASON        |MEB                                     |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |177/MED RET                             |
|1.108.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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