RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 November 2006
      DOCKET NUMBER:  AR20060005747


      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. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Ms. Ernestine I Fields            |     |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, correction of his discharge document
to show award of a 30 percent disability rating.

2.  The applicant states, in effect, that in August 2003 he received a
disability discharge with a 20 percent rating.  He also states, in effect,
that the Department of Veterans Affairs granted him an additional 10
percent disability rating and his discharge now needs to be corrected to
show this increased disability rating.

3.  The applicant provides 3 Department of Veterans Affairs letters related
to his service-connected disability rating, dated 6 November 2003, 17
February 2005, and 10 April 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 August 2003, the date of his disability discharge.  The
application submitted in this case is dated 10 April 2006.

2.  The applicant's military service records show that he enlisted in the
U.S. Army Reserve for a period of 8 years on 16 June 2000 and entered
active duty in the Regular Army on 12 July 2000.  Upon completion of basic
combat training and advanced individual training, the applicant was awarded
military occupational specialty (MOS) 31R (Multi-channel Transmission
Systems Operator).

3.  The applicant's military service records show that he was assigned to
Headquarters and Headquarters Detachment, 141st Signal Battalion (Germany)
from 15 August 2002 through 28 August 2003.  He was honorably discharged
from the Army with disability severance pay on 28 August 2003 after
completing a total of 3 years, 1 month, and 14 days of creditable active
service.

4.  The applicant's Official Military Personnel File (OMPF) is absent a
copy of his Medical Evaluation Board (MEB) or Physical Evaluation Board
(PEB) proceedings.  However, records available at the U.S. Army Physical
Disability Agency show that the applicant's disability was based on pain
rated at
20 percent and that he was discharged with severance pay.

5.  The applicant's military service records contain a copy of his DD Form
214 (Certificate of Release or Discharge from Active Duty) that shows he
was discharged on 28 August 2003 due to physical disability with severance
pay.
6.  In support of his application, the applicant provides 3 letters from
the Department of Veterans Affairs (VA) related to his service-connected
disability rating.  These letters show, in pertinent part, that on 6
November 2003 it was determined that the applicant's retropatellar pain
syndrome of the right knee and right sacro-iliac joint syndrome were
related to his military service and a service connection was granted by the
VA with an overall or combined rating of
20 percent.  On 17 February 2005, in response to the applicant's Notice of
Disagreement, dated 17 December 2003, the VA determined that the
applicant's medical condition related to his service-connected medical
condition had worsened.  Consequently, the VA granted an increase in the
assigned percentage for the applicant's right sacro-iliac joint syndrome
(i.e., from
10 percent to 20 percent) with an overall or combined rating by the VA of
30 percent.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation), Appendix B (Army Application of the Department of Veterans
Affairs Schedule for Rating Disabilities) provides, in pertinent part, that
often a Soldier will be found unfit for any variety of diagnosed conditions
which are rated essentially for pain.  Inasmuch as there are no objective
medical laboratory testing procedures used to detect the existence of, or
measure the intensity of, subjective complaints of pain, a disability
retirement cannot be awarded solely on the basis of pain.  This document
also shows that rating by analogy to degenerative arthritis as an exception
to analogous rating policies may be assigned in unusual cases with a 20
percent ceiling, either for a single diagnosed condition or for a
combination of diagnosed conditions each rated essentially for a pain
value.  To do otherwise would be to combine pain ratings so as to achieve a
percentage of disability that would result in erroneous disability
retirement.

8.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of 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’s OMPF is absent a copy of the MEB and/or PEB proceedings
that led to his disability discharge from the Army.  However, the Board
notes that the applicant’s OMPF contains a properly constituted DD Form 214
that was authenticated by the applicant.  This document identifies the
reason and percent of disability separation pay approved at the time of the
applicant's discharge.  In addition, there is no evidence of record to show
that the Army misapplied either the medical factors involved or the
governing regulatory guidance concerning the processing of the applicant's
MEB, PEB, or disability discharge.  Therefore, the Board presumes
government administrative regularity in the discharge process.

2.  The evidence of record shows that for rating unfitting conditions that
are manifested by pain, and where the pain is defined as "marked" and the
frequency of the pain as "constant", a rating of 20 percent will be
assigned by the Army.  In addition, one or more conditions that are
manifested essentially by pain will be rated for the totality of the
manifested pain. That is, the number of sites of pain does not determine
the rating.  For example, pain in both knees and a shoulder of marked
intensity and constant frequency would be rated the same as pain in one
knee of marked intensity and constant frequency.  In this regard, Army
Regulation 635-40 provides for a 20 percent ceiling for conditions rated
essentially for pain.  Therefore, in view of the above, the preponderance
of the evidence indicates that the regulatory rules and guidance pertaining
to the applicant's disability discharge were properly administered and
applied.

3.  The evidence of record shows that the Army rates only conditions
determined to be physically unfitting that were incurred or aggravated
during the period of service.  Furthermore, it can rate a condition only to
the extent that the condition limits the performance of duty.  The VA, on
the other hand, must provide compensation for disabilities which it
determines were incurred in or aggravated by active military service and
which impair the individual's industrial or social functioning.  Moreover,
the law requires the VA must give the veteran the benefit of any reasonable
doubt.  The fact that the VA, in its discretion, increased the applicant's
disability rating is a prerogative exercised within the policies of that
agency.  It does not, in itself, establish physical unfitness for
Department of the Army purposes.  Therefore, the applicant is not entitled
to correction of his discharge document to show he received a disability
discharge (retirement) based on a 30 percent disability rating.

4.  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

___MKP _  ___RR __  __EIF___  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                 |AR20060005747                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061109                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20030828                                |
|DISCHARGE AUTHORITY     |AR 635-40, Paragraph 4-24b(3)           |
|DISCHARGE REASON        |Disability, Severance Pay               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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