RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 October 2006
      DOCKET NUMBER:  AR20060002229


      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. Jeanie M. Biggs               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann Jr.         |     |Chairperson          |
|     |Mr. David R. Gallagher            |     |Member               |
|     |Mr. Roland S. Venable             |     |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 due to disability
with severance pay be changed to a medical retirement.

2.  The applicant states, in effect, that the Physical Evaluation Board
(PEB) did not give him a proper examination to determine how severe his
back condition was at the time of discharge.  He further states that the
Veterans Administration (VA) examination found more serious disability
conditions and awarded him a higher percentage than the Army on his back
condition.

3.  The applicant provides a copy of:

      a.  his DD Form 214 (Certificate Of Release Or Discharge From Active
Duty) with a separation date of 3 November 2003;

      b.  Department of Veterans Affairs (DAV) rating decision, dated 18
November 2003, that granted the applicant service connection for
postoperative residuals, left malleolus fracture, status post open
reduction and internal fixation (10%), retropatellar pain syndrome, right
knee (10%), retropatellar pain syndrome, left knee (10%), ilio-tibial band
syndrome, right (10%), lumbar strain with degenerative changes, thoracic
spine T12-L1 (10%), cervical strain, and tinnitus (10%) giving him a
combined disability rating of 50 percent;

     c.  Department of Veterans Affairs (DAV) rating decision, dated 13
November 2003;

     d.  DA Form 199 (Physical Evaluation Board Proceedings), dated
           3 September 2003;

      e.  DA Form 3947 (Medical Evaluation Board Proceedings), dated 12
August 2003;

      f.  DA Form 2807-1 (Report Of Medical History), dated 28 May 2003;

      g.  DA Form 2808 (Report Of Medical Examination), undated;

      h.  DA Form 2697 (Report Of Medical Assessment), dated 28 May 2003;

       i.  DA Form 4700 (Medical Record Supplemental Medical Data), dated
    22 April 2003; and

       j.  FHT Form 608-X44 (Exceptional Family Member Screening
Information), dated 22 May 2003, and DA Form 3349 (Physical Profile), dated
14 August 2003.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The Applicant elected the Disabled American Veterans (DAV) as his
counsel.

2.  On 27 July 2006, the Army Board for Correction of Military Records
notified the DAV of the applicant’s pending application and requested that
they review his records within 30 days.  However, the DAV has not provided
a brief.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he served in the Navy from
10 June 1987 to 10 October 1989.  He enlisted in the Regular Army on 20
November 1990 for a period of 4 years.  He successfully completed basic
combat and advanced individual training and was awarded the military
occupational specialty 44E (machinist).  The applicant served continuously
until 22 October 2003.

2.  On 27 June 2003, a Medical Evaluation Board (MEBD) referred the
applicant to a Physical Evaluation Board (PEB) for the following diagnoses
(DX): (1) neck pain, (2) low back pain, and (3) mult-level schmorl nodes.

3.  On 6 August 2003, the findings and recommendation was approved.

4.  On 12 August 2003, the applicant agreed with the MEBD’s findings and
recommendation and indicated that he did not want to remain on active duty.

5.  On 15 September 2003, the PEB found the applicant physically unfit due
to chronic neck pain, without electrodiagnostic abnormality.  Rated as
slight—not requiring daily narcotic therapy/frequent (10%) and low back
pain with multi-level schmorl nodes, without electrodiagnostic abnormality,
with pain on motion (10%). The PEB recommended that the applicant be
separated with severance pay if otherwise qualified with a combined rating
of 20 percent.  The PEB also found that the applicant’s disability was not
based on an injury or disease received as a direct result of armed
conflict, caused by an instrumentality of war, or incurred during a period
of war as defined by law.

6.  On 22 October 2003, the applicant was discharged due to disability with
severance pay.  He had completed 15 years, 3 months, and 3 days of active
service that was characterized as honorable.

7.  Army Regulation 635-40, (Physical Evaluation for Retention, Retirement,
or Separation), provides that a Soldier may be separated with severance pay
if the Soldier's disability is rated at less than 30 percent, if the
Soldier has less than 20 years of service as defined in 10 USC 1208 and if
the Soldier's disability occurred in the line of duty and is the proximate
result of performing active duty.

8.  Title 38, United States Code, permits the DVA to award compensation for
a medical condition which was incurred in or aggravated by active military
service.  The DVA, however, is not required by law to determine medical
unfitness for further military service.  The DVA, in accordance with its
own policies and regulations, awards compensation solely 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, an individual'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 the individual for DVA benefits based on an
evaluation by that agency.  The DVA can evaluate a veteran throughout his
or her lifetime, adjusting the percentage of disability based upon that
agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  An award of a higher DVA 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 from further military service.  The DVA, 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.

2.  The applicant has not submitted any evidence which would show that his
disabilities were not properly rated in accordance with the VA Schedule for
Rating Disabilities.  His separation with severance pay was in compliance
with applicable law and regulation.

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

___phm__  ____drg_  ___rsv___  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.





                                  ___________Patrick H. McGann______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002229                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061011                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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