RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 November 2005
      DOCKET NUMBER:  AR20050001102


      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. Robert J. McGowan             |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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, permanent disability retirement in
lieu of disability separation.

2.  The applicant states he should have been rated 30 percent disabled and
medically retired.

3.  The applicant provides:

      a.  A personal statement, dated 2 December 2004.

      b.  A copy of DA Form 199 (Physical Evaluation Board (PEB)
Proceedings), dated 22 January 2003.

      c.  Copies of a Department of Veterans Affairs (DVA) Compensation and
Pension Exam Reports, dated 22 and 29 May 2002.

      d.  Medical records, dated 16 December 2003.

      e.  Various other DVA medical records.

CONSIDERATION OF EVIDENCE:

1.  With prior Army National Guard experience, the applicant's records show
he enlisted in the Regular Army for 3 years on 14 October 1993.  He then
served on continuous active duty until he was retired by reason of
temporary disability on 9 December 1998 in the grade of E-4.

2.  The complete evidence pertaining to the applicant's physical disability
processing is not available in the records.  However, his DD Form 214
(Certificate of Release or Discharge From Active Duty) and his retirement
order shows that he was retired on 9 December 1998 and placed on the
Temporary Disability Retired List (TDRL) on 10 December 1998 with a
temporary disability rating of 40 percent.

3.  The records show the applicant was given a formal PEB on 22 January
2003 at Fort Sam Houston, Texas.  The PEB revealed the following disability
descriptions:

      a.  "Major Depressive Disorder.  Rated as mild.  Taking anti-
depressant medication, participating in follow-up treatment, employed,
attending school."  Rated at 10 percent.

      b.  "Chronic Low Back Pain and Chronic Bilateral Foot Pain.  Rated as
slight and occasional."  Rated at 0 percent.

      c.  "Status Post Proximal Interphalangeal Joint Fusion."  Rated at
0 percent.

The PEB found the applicant unfit with a combined disability rating of 10
percent and recommended he be separated with severance pay, if otherwise
qualified.

4.  The applicant's separation order removing him from the TDRL and
separating him with a 10 percent disability and severance pay is not
available.

5.  On 13 August 2002, the DVA examined the applicant and found him to be
70 percent disabled for major depression, 10 percent disabled for reason of
low back pain, and 10 percent disabled for bilateral foot pain.

6.  The applicant was admitted to a DVA medical facility on 14 December
2003.  He was treated and diagnosed as having bipolar disorder; depression
not otherwise specified; episodic alcoholism; low back pain; and arthritis
in the feet.  The Discharge Summary notes recent alcohol abuse and use of
crack cocaine.

7.  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 incurred while entitled to basic pay.  Section 1201 provides for
the physical disability retirement of a member who has at least 20 years of
active service or a disability rating of at least 30 percent.  Title 38,
United States Code, sections 310 and 331, permit the Department of Veterans
Affairs (VA) to provide treatment and to award compensation for
disabilities which were incurred in or aggravated by active military
service.

8.  Army Regulation 635-40 establishes the Army Physical Disability
Evaluation System (PDES) according to the provisions of Chapter 61, Title
10, United States Code (10 USC 61) and Department of Defense Directive
(DODD) 1332.18.  It 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.  If a Soldier is found unfit
because of physical disability, the regulation provides for disposition of
the Soldier according to applicable laws and regulations.  Paragraph 4-
24e(1) of the regulation then in effect states that, based upon the final
decision, the US Total Army Personnel Command (PERSCOM, now the US Army
Human Resources Command, Alexandria, Virginia) will issue retirement orders
for permanent retirement for physical disability.

9.  Army Regulation 635-40, paragraph 7-2, provides a distinction between a
temporary and permanent physical disability.  It states that an individual
may be placed on the TDRL (Temporary Disability Retired List) for a maximum
period of 5 years (which is allowed by Title 10, United States Code,
section 1210) when it is determined that the individual's physical
disability is not stable and he or she may recover and be fit for duty, or
the individual's disability is not stable and the degree of severity may
increase within the next 5 years so as to change the disability rating.

DISCUSSION AND CONCLUSIONS:

1.  The Army must find unfitness for duty at the time of separation before
a member may be medically retired or separated.  The percentage of
disability rating reflects the Soldier's physical condition at separation
and that percentage is permanent.  The only time an Army rating may change
is during a Soldier's period on the TDRL while awaiting stabilization of an
unfitting condition.

2.  The applicant's contention that he should have been permanently retired
by reason of physical disability is without merit.  The PDES provides for
the periodic re-evaluation of Soldiers placed on the TDRL to determine
whether their disabilities have changed.  The applicant was evaluated at
Fort Sam Houston in January 2003 and his disabilities were found to have
improved.  Although he was still determined to be unfit for military
service, his percentage of disability had decreased from 40 percent to 10
percent.  Based upon regulations and public law, he was removed from the
TDRL and separated.

3.  The DVA is not required to find unfitness for duty.  An award of a DVA
rating does not establish entitlement to medical retirement or separation
from the Army. Operating under different law and its own policies and
regulations, the DVA, which has neither the authority nor the
responsibility for determining medical unfitness for military service,
awards ratings because a medical condition is related to service (service-
connected) and affects the individual’s civilian employability.
Furthermore, the VA can evaluate a veteran throughout his or her lifetime,
adjusting the percentage of disability based upon that agency’s
examinations and findings.
4.  The difference in military and DVA ratings arises out of the basic
postulates upon which disability ratings are based by the two agencies of
the Government.  Military disability awards arise out of and are
compensation for the military career interruption produced by an unfitting
disease or injury.  DVA benefits are based on the impairment of civilian
career or employment arising from service-connected or aggravated disease
or injury.  It is, therefore, not unexpected that these two different
systems should, at times, produce different evaluations of the impairment
arising out of the same injury or disease.

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
submit evidence that would satisfy the aforementioned requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __lds___  __mjf___  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.




                                  Margaret K. Patterson
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001102                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051110                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.0200                                |
|2.                      |108.0400                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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