RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            16 November 2006
      DOCKET NUMBER:   AR20060004984


      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. Jeffrey Redmann               |     |Chairperson          |
|     |Mr. Robert Soniak                 |     |Member               |
|     |Ms. David Tucker                  |     |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 her discharge by reason of
physical disability with severance pay (10%) be changed to retirement by
reason of physical disability with a 40% disability rating.

2.  The applicant states that she received a Physical Evaluation Board
(PEB) rating of 10% with entitlement to separation pay and she believes
that she should have received a higher disability rating based on the
Medical Evaluation Board (MEB) proceedings.  She further states that the
60% disability rating assigned by the Department of Veterans Affairs (VA)
clearly shows that an error was made by the PEB assigning her a 10% rating.


3.  The applicant provides a copy of the MEB proceedings, her VA Rating
Decision and a copy of her report of separation (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant, while attending Eastern New Mexico University, enlisted
in the United States Army Reserve on 9 September 1992 for a period of 8
years and participation in the Reserve Officer Training Corps (ROTC)
program.  A condition of her contract provided that she be ordered to
active duty as an enlisted soldier if she breached the terms of her
contract.

2.  On 2 February 1995, she was ordered to involuntary active duty in the
pay grade of E-1, for breach of her ROTC contract.  She completed her basic
combat training at Fort Leonard Wood, Missouri and her advanced individual
training (AIT) at Fort Rucker, Alabama.  She served as a helicopter
repairman at Fort Campbell, Kentucky and Fort Bragg, North Carolina and was
promoted to the pay grade of E-5 on 15 April 1999.

3.  The applicant extended her enlistment for a period of 48 months to
participate in the Bonus Extension and Retraining (BEAR) Program for
training as a cryptologic communications intercepter in Chinese-Mandarin.

4.  She completed her training and reenlisted on 7 December 2001 for a
period of 6 years and a selective reenlistment bonus (SRB) of $20,000.  She
was transferred to Hawaii and was promoted to the pay grade of E-6 on 1
April 2002.

5.  On 18 February 2005, the applicant underwent a MEB at Tripler Army
Medical Center, Hawaii, to evaluate her for Herniated Lumbar Disc, Lumbar
Degenerative Disc Disease, Sacroiliac joint sprain and lumbago.  The MEB
recommended that she be referred to a PEB and the applicant concurred with
the MEB’s findings and recommendations.

6.  The PEB results are not present in the available records; however, her
records do contain a duly authenticated DD Form 214 which shows that she
was honorably discharged on 19 July 2005, under the provisions of Army
Regulation 635-40, paragraph 4-24B(3), for disability with severance pay.
She was assigned a 10% disability rating and was paid $61,142.40 in
disability severance pay.  She had served 10 years, 7 months and 20 days of
total active service.

7.  On 16 February 2006, the VA assigned the applicant an overall combined
rating of 60% for lumbar strain with degenerative disc disease, migraine
headaches, Raynaud’s phenomenon, hypothyroidism and left and right plantar
fasciitis.

8.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement,
or Separation, provides that the mere presence of an impairment does not,
of itself, justify a finding of unfitness because of physical disability.
In each case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the member may
reasonably be expected to perform because of his or her office, rank, grade
or rating.  That regulation also provides the provisions for Soldiers to
appeal the decisions of the various boards and agencies involved in
determining a Soldier’s disability ratings.

9.  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.  The VA, however, is not required by
law to determine medical unfitness for further military service.  The VA,
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 VA benefits
based on an evaluation by that agency.

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 incurred while entitled to basic pay.

11.  There is a difference between the Department of Veterans Affairs (VA)
and the Army disability systems.  The Army’s determination of a Soldier’s
physical fitness or unfitness is a factual finding based upon the
individual’s ability to perform the duties of his or her grade, rank or
rating.  If the Soldier is found to be physically unfit, a disability
rating is awarded by the Army and is permanent in nature.  The Army system
requires that the Soldier only be rated as the condition(s) exist(s) at the
time of the PEB hearing.  The VA may find a Soldier unfit by reason of
service-connected disability and may even initially assign a higher rating.
 The VA’s ratings are based upon an individual’s ability to gain employment
as a civilian and may fluctuate within a period of time depending on the
changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  Inasmuch as the PEB proceedings are not present in the available
evidence for the Board to review, it must be presumed that the applicant’s
disability was properly rated in accordance with the VA Schedule for Rating
Disabilities (VASRD) and her separation with severance pay was in
compliance with laws and regulations in effect at the time.

2.  Department of the Army disability decisions are based upon observations
and determinations existing at the time of the PEB hearing.  The Department
of the Army ratings become effective the date that permanency of the
diagnosis is established.

3.  The applicant has not provided sufficient evidence to support her
contention that she was not afforded proper disability processing or that
the evaluation and the rating rendered by the PEB was incorrect

4.  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.

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 this requirement.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__CG ___  __TR____  ___PT  _  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.





                                  _____Curtis Greenway_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004984                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061114                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |20050719                                |
|DISCHARGE AUTHORITY     |AR 635-40, Para 4-24B(3)                |
|DISCHARGE REASON        |Disability – Severance Pay              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |179/%                                   |
|1.108.0200              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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