RECORD OF PROCEEDINGS


	IN THE CASE OF:       .
	

	BOARD DATE:              29 March 2007              
	DOCKET NUMBER:     AR20060009046


	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. Gerard W. Schwartz

Acting Director

Ms. Antoinette Farley

Analyst


The following members, a quorum, were present:


Mr. Lester Echols 

Chairperson

Ms. Linda M. Barker

Member

Mr. Michael J. Flynn

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 reconsideration of his request to have his records corrected to show that he was medically retired by reason of a physical disability. 

2.  The applicant states that his previous request shows that his Reentry (RE) Code was changed to RE-3, but in the interest of justice and to make him a whole person he needs to be a retired service member.  The applicant continues that during his Physical Evaluation Board (PEB) he was not given the full help of the support officer.  The applicant argues that he only met with his support officer for a very short time and a lot was discussed.  The applicant also argues that all of his medical records were not reviewed by PEB and the PEB could not make a just decision.

3.  The applicant states that he requested the Department of Veterans Affairs (DVS) send his medical records to the Army Board of Correction of Military Records.  The applicant further stated that missing from his medical records at his PEB proceedings was information from the Mental Health Unit at Irwin Army Community Hospital, Fort Riley, Kansas.

4.  The applicant states that if the PEB had all the information from his service medical records, they would have seen his mental health status.  The applicant continues that at the time of his PEB proceedings he was confused and did not want to be removed from the service and answered all the questions with this in mind. 

5.  The applicant contends that 20 years has elapsed since his PEB proceedings, he is currently receiving treatment, and feels his discharge was unjust.  

6.  The applicant provides copies of an undated requests to the Veterans Administration for his medical documents; five pages of the Medical Evaluation Board Proceedings (MEB), dated 23 May 1985; five pages requesting retention on active duty, dated 5 June 1985; PEB Proceedings, dated 11 June 1985; Disability Discharge Orders Number 183-1, dated 22 October 1985; and a DVA, Wichita, Kansas, Disability Rating Decision, dated 27 December 2001, in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20050009203 on 6 April 2006.

2.  The applicant provides medical documentation which was not previously reviewed by the ABCMR, which is considered new evidence and as such warrant reconsideration by the Board.  

3.  Records show the applicant enlisted in the Regular Army on 27 June 1978.  
He completed basic combat training and advanced individual training and was awarded Military Occupational Specialty (MOS) 63N (Tank Mechanic).

4.  Documents associated with the applicant's previous review of his medical evaluation board proceedings and disability processing was not initially available for review by the Board with one exception.  The applicant's military records included a document, dated June 1985, which shows he requested retention beyond his scheduled separation date because he was pending a medical board for post traumatic left-mid-foot arthritis with arthrodesis of the third metatarsal and cuneiform bones, moderately severe symptoms.

5.  On 7 November 1985, the applicant was discharged by reason of physical disability with severance pay.  The applicant's record also shows that his 
RE Code was corrected to show RE-3 vice RE-4.  The applicant's DD Form 214 shows he completed 7 years, 4 months, and 11 days of active duty.

6.  The applicant provided a copy of the Medical Board Report, dated 20 May 1985, which provided the history of his illness.  The report shows that on 2 March 1979, the applicant was stationed at Fort Hood, Texas.  The applicant's foot was caught in a tank turret.  The report shows that after several debridements (surgical excision of dead, devitalized, or contaminated tissue and removal of foreign matter from a wound) of the left foot, a split thickness skin graft was done on the lateral plantar (heal) aspect of the foot. 

7.  The report shows that the applicant complained of pain at the lateral aspect of the skin graft, which was unresponsive to footwear modifications.  The report also shows he had been in generally good health with the exception of scrotal tenderness and left foot pain.

8.  On 20 May 1985, applicant was also diagnosed by a medical evaluation board with post-traumatic left mid-foot arthritis with arthrodesis of the third metatarsal and cuneiform bones, moderately severe symptoms.  The applicant was also diagnosed with extensive buildup of callosity at the edge of the skin graft on the lateral weight bearing surface of the left foot, mildly symptomatic.  The recommendation section of the report shows that the applicant no longer met the medical fitness standards regarding the lower extremities as prescribed in Army Regulation 40-501(Standards of Medical Fitness), Para 3-14, a (2) and 3-33, y.  

9.  On 23 May 1985, the applicant concurred with the MEB's findings/recommendations and the referral of his case to the PEB for determination of fitness for duty.  

10.  On 11 June 1985, the applicant concurred with the findings of the PEB which found him physically unfit due to post-traumatic left mid-foot arthritis, with arthrodesis of the third metatarsal and cuneiform bones.  The VA Schedule for Rating Disabilities (VASRD) assigned Code 5003.  The PEB recommended a disability rating of (10%) percent and the applicant be separated from the service with severance pay. 

11.  On 27 December 2001, the DVA, Wichita, Kansas informed the applicant that his service connected compensation for a Psychiatric Disability would be continued at 50 percent.  The evaluation shows that a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  The Psychiatric Disability evaluation further shows that a higher evaluation of 70 percent is not warranted unless there are deficiencies in most areas.

12.  The applicant was also informed that his service connected compensation for left foot disability was currently 30 percent disabling and would be continued. The evaluation shows that a 30 percent rating is assigned whenever foot injury results in severe symptoms.  The evaluation also shows that a higher evaluation of 40 percent is not warranted unless the record shows loss of use of the foot.  The evaluation shows that the applicant was awarded entitlement to “individual unemployability and eligibility to dependents' educational assistance.”  

13.  Army Regulation 40-501 (Standards of Medical Fitness) governs the medical fitness standards for retention and separation, including retirement.  Paragraph 1-6 states that medical fitness standards cannot be waived by medical examiners or by the examinee.  Examinees initially reported as medically unacceptable by reason of medical unfitness when the medical fitness in chapter 2, 3, 4, or 5 apply, may request a waiver of the medical fitness standards in accordance with the basic administrative directive governing the personnel action.


14.  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.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

15.  Title 10, United States Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

16.  Title 10, United States Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of active Federal service and a disability rated at less than 30 percent.

17.  Title 38, United States Code, 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.  

18.  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.  The applicant's contention is that his physical disability discharge with severance pay from the Army should be changed to a medical retirement.  

2.  The applicant's disability was properly rated in accordance with the DVA Schedule for Rating Disabilities by the PEB.  Based on the applicant having less than 20 years of service and a disability rating at less than 30 percent, he was, therefore, separated with entitlement to disability severance pay instead of a disability retirement consistent with law and regulation.

3.  An award of a higher DVA rating does not establish error or injustice in an Army disability 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 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.

4.  Furthermore, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

5.  Based on the foregoing, there is no basis for changing the applicant's disability rating by the Army in this case.  As provided for in law, the DVA has rated the applicant at 80 percent service connected disability, is appropriately compensating the applicant based on this ratings, and may reevaluate the applicant, if necessary, as his condition changes.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LE____  _MJF___  __LMB___  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 to amend the decision of the ABCMR set forth in Docket Number AR20050009203, dated 6 April 2005.





___Lester Echols ____
         CHAIRPERSON





INDEX

CASE ID
AR20060009046
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
HD
DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR 635-40 
DISCHARGE REASON
Physical Disability w/Severance Pay
BOARD DECISION
DENY
REVIEW AUTHORITY
Director
ISSUES         1.
A108.0200
2.

3.

4.

5.

6.