RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060013084 


	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 his physical disability rating be evaluated.  

2.  The applicant states that the Physical Evaluation Board (PEB) did not evaluate or rate his Reactive Airway Disease before he was discharged.  He goes on to state that he requested that he be evaluated for his Reactive Airway Disease at the time he was being evaluated for an orthopedic condition and was told that it was too late; however, he was still on active duty.  He continues by stating that he has since received a 60% rating by the Department of Veterans Affairs (VA) and wonders if he was properly evaluated by the Army.

3.  The applicant provides a copy of his PEB Proceedings, a letter from his commander to the hospital commander, a copy of an electrocardiogram, a copy of his report of separation (DD Form 214). 

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army in Raleigh, North Carolina on 26 January 1998 for a period of 3 years and training as an armor crewman.  He completed is one-station unit training (OSUT) at Fort Knox, Kentucky and was transferred to Baumholder, Germany.  He deployed to Bosnia from 29 June 1998 to 22 September 1998 and to Kosova from 5 May 1999 to 18 July 1999.  

2.  On 27 January 2000, while still in Baumholder, he reenlisted for a period of 3 years and assignment to Fort Knox.  

3.  On 27 January 2003, the applicant underwent a PEB at Fort Sam Houston, Texas.  The PEB evaluated his condition as Chronic lower back pain, without neurologic abnormality or documented chronic paravertebral muscle spasms on repeated examinations, with characteristic pain on motion.  The PEB found that his medical and physical impairments prevented reasonable performance of duties required by his grade and military specialty.  The PEB recommended that he be separated with severance pay and a 10% disability rating.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case on 4 March 2003.     

4.  On 26 April 2003, he was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24B(3), for disability with severance pay.  He had served 5 years, 3 months and 1 days of total active service and received $15,288.00 in severance pay benefits.
5.  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.
  
6.  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. 

7.  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.  It is further noted that the applicant had the opportunity to dispute the findings and recommendations of the PEB and chose not to do so.

3.  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.   

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 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.





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          CHAIRPERSON




INDEX

CASE ID
AR20060013084
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070315
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. 108.0200
179/% rating
2.

3.

4.

5.

6.