RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 22 March 2007 
	DOCKET NUMBER:  AR20060007599 


	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.  


x
	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 he be granted a higher disability rating than that given by the Physical Evaluation Board (PEB). 

2.  The applicant states, in effect, that he did not receive the proper treatment before being evaluated by a medical board.  He further states that the medical board did not properly evaluate him because they did not use current information to make their determination.  He continues by stating that he had other problems that should have been considered by the PEB and they were not.  

3.  The applicant provides a narrative summary of his evaluation on 6 September 2005, a copy of his report of separation (DD Form 214), a chronological record of medical care (SF Form 66), and the results of an undated Needle EMG Examination.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board give sympathetic consideration of the applicant’s request for a higher disability rating. 

2.  Counsel states, in effect, that the applicant’s request deserves sympathetic consideration by the Board for his higher pain levels.  

3.  Counsel provides no additional documents or evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 10 July 1960 and on 22 February 2003, while serving as a member of the Pennsylvania Army National Guard (PAARNG) in the pay grade of E-4, he was ordered to active duty in support of Operation Enduring Freedom. 

2.  The available evidence indicates that he deployed in May 2003 and remained deployed until he was medically evacuated in September 2003.   

3.  The applicant underwent a Medical Evaluation Board (MEB) on 1 March 2005. The MEB listed his diagnosis as low back pain status post right S1 nerve root decompression with left radicular pain, but normal EMG.  The MEB also considered his other medical conditions and found that they were all medically acceptable and non-compensable.  The MEB recommended that the applicant be evaluated by a PEB.  The applicant concurred with the findings and recommendations of the MEB on 12 September 2005.

4.  On 23 September 2005, an informal PEB found the applicant unfit for low back pain and assigned a 10% disability rating.  The applicant non-concurred with the findings of the PEB on 13 October 2005 and requested a formal hearing.  
5.  On 15 November 2005, a formal PEB affirmed the informal PEB’s findings.  The applicant non-concurred with the findings on 30 November 2005 and requested additional time because he had a medical appointment scheduled for 5 December 2005.  The PEB reconsidered their findings after reviewing the 5 December 2005 EMG results and found that the new evidence did not overcome the preponderance of the evidence.  Accordingly, the PEB recommended that he be discharged with severance pay based on a 10% disability rating.

6.  The applicant appealed the findings and recommendations of the PEB to the Army Physical Disability Agency (APDA) and that agency, upon review, determined that the findings and recommendations of the PEB were correct.

7.  Accordingly, the applicant was honorably discharged on 24 February 2006, under the provisions of Army Regulation 635-40, paragraph 4-24B(3), by reason of disability with severance pay.  He had served 3 years and 3 days of active service and was paid $16,147.20 in severance pay benefits.

8.  In the processing of this case a staff advisory opinion was obtained from the APDA which opined, in effect, that there were no errors or injustices in the applicant’s disability processing that would require any changes to his military records.  The opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.

9.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-2b, provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.
  
10.  There is a difference between the VA and Army disability systems.  While both the VA and the Army use the VA Schedule for Rating Disabilities (VASRD) to determine disability ratings, not all of the general policies set forth in the VASRD apply to the Army; thus there are sometimes differences in ratings.  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 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. 

11.  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.                    

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities (VASRD) and his separation with severance pay was in compliance with laws and regulations in effect at the time.

2.  The applicant has not provided sufficient documentation to support his contention that he was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB was incorrect.     

3.  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

____x___  _x___  ____x  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.





_____x________
          CHAIRPERSON




INDEX

CASE ID
AR20060007599
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070322
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1. 108.0200
179/%
2.

3.

4.

5.

6.