RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 JULY 2006
      DOCKET NUMBER:  AR20050014834


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. Edward Montgomery             |     |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, disability retirement or in the
alternative placement on the Temporary Disability Retired List (TDRL).

2.  The applicant states he should have received a disability rating of 30
percent during is Army disability processing.  He states he was not
afforded an opportunity to undergo a MRI (magnetic resonance imaging) which
would have identified issues associated with his lower back and right
shoulder which were not addressed during his disability processing.

3.  The applicant also states that recent additional medical evidence
supports his contention that he should receive an increase in his
disability rating to qualify for medical retirement.

4.  The applicant provides copies of MRI summaries from 18 January 2005
which were associated with screening of his left knee, back, and shoulder,
a copy of a
3 January 2005 radiology report of his small bowel, and a copy of May 2005
operative report associated with his right knee arthroscopy surgery.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant served an initial
period of active duty between July 1988 and July 1992.  On 30 November 1992
he reenlisted and returned to active duty.  By January 1999 he had attained
the rank of staff sergeant, pay grade E-6.

2.  There were no service medical records available to the Board or
provided by the applicant.  However, in February 2004 the applicant
underwent a Medical Evaluation Board (MEB) which noted his irritable bowel
syndrome with diarrhea, anal sphincter incontinence, and bilateral knee
pain was all medically unacceptable and referred him to a Physical
Evaluation Board (PEB).  His gastroesophageal reflux disease and gastric
erosions were determined to be medically acceptable.

3.  The applicant concurred with the findings and recommendation of the MEB
after an addendum was issued clarifying issues associated with the
applicant’s irritable bowel syndrome with diarrhea and noting that he did
not have fecal incontinence.

4.  An informal PEB convened on 1 March 2004 which found the applicant’s
irritable bowel syndrome with diarrhea, rated as moderate and chronic
bilateral knee pain due to chondromalacia were unfitting and prevented
reasonable performance of the applicant’s duties.  The two unfitting
conditions were independently rated at 10 percent.  His remaining medical
conditions, identified by the MEB were determined not to be unfitting and
as such were not rated.  The informal PEB recommended the applicant be
discharged by reason of physical disability with a combined disability
rating of 20 percent.  The applicant concurred with the findings and
recommendation of the informal PEB and waived his entitlement to a formal
hearing.

5.  On 6 May 2004 the applicant was discharged by reason of disability and
received more than $66,000.00 in disability severance pay.

6.  The documents provided by the applicant, in support of his request,
resulted from medical appointments occurring in January 2005 or later.  His
MRI report of his right knee noted an impression of small effusions noted
overlying the lateral aspect of the lateral femoral condyle, no underlying
abnormality detected, and no internal derangement of the knee.  The left
knee MRI noted horizontal nondisplaced tear through the posterior medial
meniscus.  The lumbar spine MRI report noted the applicant reported
“chronic excruciating back pain”; the report for his shoulders noted
“chronic popping of shoulder.”  His small bowel radiology report noted that
the scout abdominal radiograph was unremarkable but that multiple small
bowel radiographs demonstrated sand-like lucencies, a mild degree of
flocculation suggestive of several things, including early celiac disease.

7.  In May 2005 the applicant underwent a right knee arthroscopy.

8.  Army Regulation 635-40, which establishes the policies and provisions
for physical evaluation for retention, retirement, or separation of Army
Soldiers, provides that an individual may be placed on the TDRL (for the
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
change within the next 5 years so as to change the disability rating.
Following reevaluation, and once it has been determined that the
individual’s medical condition has stabilized, the individual could
ultimately be found fit, permanently retired providing his final disability
rating was at 30 percent or higher, or, in cases where the final disability
rating was less than 30 percent, entitled to disability severance pay.

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 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant provides no evidence or documentation with his
application to this Board, which substantiates that the Army did not
properly evaluate his medical condition at the time of his separation, or
that any of his conditions warranted a rating high enough to result in
disability retirement rather than separation.

2.  The applicant’s Army disability rating, which is essentially a snapshot
in time, would have been based on his condition at the time he was
undergoing disability processing.  The fact that the condition may have
deteriorated or that advanced medical procedures resulted in more detailed
or different conclusions about an individual’s medical condition is not
evidence that any error or injustice occurred in the original findings and
recommendations of the PEB.  Such issues are best addressed via disability
compensation from the Department of Veterans Affairs who can continue to
evaluate and adjust disability rating over the course of an individual’s
lifetime.
3.  It is noted that the applicant would have been involved in his
disability processing and would have had the opportunity to raise
objections at various stages in the process.  The evidence, however, shows
that the applicant concurred with the findings and recommendation of the
informal PEB, thereby confirming his agreement with the recommendation that
he be separated by reason of disability with a disability rating of 20
percent.  He has submitted no evidence that indicates otherwise.  Had he
believed that the rating was unfair or unjust or that other medical
conditions should have been addressed but were not, he could have requested
a formal hearing.  The fact that he did not further supports a conclusion
that his conditions were properly evaluated and that the rating was
appropriate.

4.  The applicant’s contention that he should have been placed on the TDRL
is also without foundation.  There is no indication that the applicant’s
conditions were not sufficiently stable at the time of his Army disability
processing that a permanent rating, for Army purposes, could not be
rendered.

5.  In order to justify correction of a military record the applicant must
show, 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

___JM___  __JR ___  ___EM __  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 Meixell__________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050014834                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060727                                |
|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.                      |                                        |


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