RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 April 2007
      DOCKET NUMBER:  AR20060006339


      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. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. William Crain                 |     |Member               |
|     |Mr. Dale DeBruler                 |     |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 a previous application to this Board dated
22 April 2002, physical disability retirement.

2.  The applicant states in his previous application to this Board, that
his Veterans Affairs Regional Office Rating Decision indicates that he has
multiple ratings for sleep apnea and headaches.  He states that he a
combined service-connected disability rating of 50 percent for ongoing
medical problems that were present while he was on active duty.

3.  The applicant provides in support of his request an undated Application
for Correction of Military Records (DD Form 149) with no information
contained therein except his signature; a Department of Veterans Affairs
(DVA) Statement in Support of Claim dated 7 March 2006; and a DVA Veteran's
Application for Increased Compensation Based on Unemployability dated 8
March 2006.

CONSIDERATION OF EVIDENCE:

1.  After completing 1 year, 7 months and 24 days of net service in the
California Army National Guard and 2 months and 2 days in the Oklahoma Army
National Guard, the applicant enlisted in the United States Army Reserve
(USAR) on 14 August 1985, for 4 years, in the pay grade of E-2.  He
reenlisted in the USAR for 6 years on 29 July 1989.

2.  The applicant enlisted in the Regular Army (RA) for 4 years on 13
February 1990.  On 27 January 1997, he reenlisted in the RA for 4 years.

3.  After being placed on numerous temporary physical profiles due to a
right ankle injury which was incurred in the line of duty, the applicant
was placed on a permanent physical profile on 4 November 1999, for right
ankle arthrosis.

4.  A Medical Evaluation Board (MEB) convened on 10 February 2000 to
determine whether the applicant should be referred to a Physical Evaluation
Board (PEB) for an evaluation.  The MEB diagnosed the applicant as having
"chronic right ankle pain, status post ankle reconstruction x2, moderate".
The MEB recommended that the applicant be referred to a PEB for further
evaluation. On 23 February 2000, the applicant concurred with the findings
and recommendations made by the MEB.



5.  On 24 February 2000, a PEB convened to determine the applicant fitness
for retention in the Army.  The diagnosis of the MEB was "chronic pain,
right ankle, status post ankle reconstruction x2.  Rated as
slight/frequent".  The PEB found that the applicant's medical and physical
impairment prevented reasonable performance of duties required by grade and
military specialty.  The PEB found that the applicant was physically unfit
for retention in the Army and the board recommended that he be separated
from the Army with severance pay, and a combined service connected
disability rating of 10 percent.  On 28 February 2000, the applicant
concurred with the findings and recommendations made by the PEB.

6.  Accordingly, on 19 April 2000, the applicant was honorably discharged
with severance pay, under the provisions of Army Regulation 635-40,
paragraph 4-24(3)B, due to physical disability.  He had 10 years, 2 months
and 7 days net active service and he had 6 years, 8 months and 10 days of
total prior inactive service.

7.  In the DVA Statement in Support of Claim that the applicant has
submitted in support of his application, the applicant states that on 30
December 2005, he had a replacement of a dorsal column stimulator.  He
states that he believed that he would return to work in a few weeks;
however, he cannot sit, stand or walk without pain shooting down his left
legs.  He states that he has been seen by a doctor numerous times and that
nothing is helping.  He states that if the injections that he is taking do
not help, he will probably require more surgery.  The applicant goes on to
state that he cannot do anything for himself and that his wife takes care
of him all day and night along with his 6-year old child.  He states that
all he can do is lay on the bed so he does not hurt and that does not
always work.  The applicant concludes his statement by expressing that his
wife cannot work and take care of him too; and that he cannot even use the
restroom with his wife's assistance.  The applicant requests that he and
his family be assisted with aid and attendance until he gets back on his
feet and can get back to work.

8.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's disability was properly rated in accordance with the VA
Schedule for Rating Disabilities.  His separation with severance pay was in
compliance with law and regulation.

2.  The medical evidence of record supports the determination that the
applicant's unfitting condition was properly diagnosed and rated at the
time of his discharge.

3.  The applicant's contentions have been noted.  However, they do not
demonstrate error or injustice in the disability rating assigned by the
Army, nor error or injustice in the disposition of his case by his
separation from the service.

4.  This Board has no jurisdiction over the ratings and compensation
awarded by the VA.  However, as previously stated, the VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

5.  In order to justify correction of a military record the applicant must
show 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.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__WP___  ___WC__  __DD ___  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.





                                  _____ William Powers________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006339                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070426                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  177  |108.0000/DISABILITY RETIREMENT          |
|2.  179                 |108.0200/PERCENTAGE                     |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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