RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 April 2007
      DOCKET NUMBER:  AR20060013560


      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. Kenneth Wright                |     |Chairperson          |
|     |Ms. LaVerne Douglas               |     |Member               |
|     |Ms. Ernestine 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 that his records be corrected to show that he
was retired by reason of physical disability.

2.  The applicant states that he appeared before a Medical Evaluation Board
(MEB) at Fort Lewis, Washington, and the physical profile that he had on
his eyes was considered.  He states that his right eye physical profile was
not recognized when he was discharged in 1981; therefore, he was extended
in the United States Army Reserve (USAR).  He states that in 2003 a line of
duty determination was approved and he was medically discharged in 2005.

3.  The applicant provides copies of documentation currently maintained in
his Official Military Personnel File and copies of his medical records.

CONSIDERATION OF EVIDENCE:

1.  On 26 January 1977, the applicant enlisted in the USAR in Columbia,
South Carolina, for 6 years, in the pay grade of E-1.  He enlisted in the
Regular Army for 4 years on 4 February 1977 and he successfully completed
his training as an infantryman.  On 29 December 1978, the applicant
extended his 4-year enlistment for an additional 11 months.

2.  On 10 January 1979, the applicant was placed on a temporary physical
profile after being diagnosed as having a decreased visual acuity in his
right eye with a 10 degree visual field.  He was placed on duty limitations
which included no crawling, stooping, running, jumping, marching or
standing for long periods; no strenuous physical activity; no assignment
requiring handling of heavy materials including weapons; and no overhead
work, pull-ups or push-ups.  His physical profile was automatically
cancelled on 16 January 1979.

3.  On 1 March 1979, the applicant was placed on a permanent physical
profile after being diagnosed as having a traumatic nerve injury with
constricted visual field in his right eye, resulting in a 95% loss of
vision.  He was placed on duty limitation which included a recommended
military occupational specialty (MOS) change; no combat duty; no duty
requiring full visual field; no duty which would potentially endanger his
vision; and to possess safety glasses.





4.  The applicant underwent a medical examination on 23 October 1979, for
the purpose of determining if he was required to appear before a medical
board.  During the examination he indicated that he injured his eye while
he was at Fort Stewart, Georgia, and that he was seen by an eye doctor when
he was in South Carolina on leave.

5.  On 10 March 1980, orders were published withdrawing the applicant's
infantryman MOS and assigning him a physical activities specialist MOS with
an effective date of 26 February 1980.  The orders indicate that the action
was taken as a result of a verbal order made by his commanding officer.

6.  On 18 November 1981, the applicant underwent a medical examination for
the purpose of determining whether he was qualified for separation at the
expiration of his term of service (ETS).  Although constricted visual field
of his right eye and hemorrhoids were noted during the examination, he was
determined to be qualified for separation at his ETS.

7.  The applicant was honorably released from active duty on 17 December
1981, under the provisions of Army Regulation 635-200, chapter 2, at his
ETS and he was transferred to the USAR Control Group (Reinforcement) to
complete his Reserve obligation.

8.  On 1 April 1982, the Veterans Administration (VA) (now known as the
Department of Veterans Affairs) awarded the applicant a 40 percent service-
connected disability rating for residuals of his right eye injury with an
effective date of 18 December 1981.

9.  He reenlisted in the USAR for 6 years on 26 January 1983 and he
remained a member of the USAR through continued reenlistments.

10.  On 14 March 1986, the applicant was notified that based on an increase
in the severity of his service-connected disability his evaluation was
increased to 50 percent with an effective date of 30 December 1985.

11.  Although the determination is not available for review by the Board at
this time, a Line of Duty (LOD) determination was conducted on 19 July 2001
to determine whether his injuries existed prior to service.  The Surgeon's
Inquiry dated 3 June 2004 concluded that in accordance with Army Regulation
600-8-2, injury or disease prior to service is considered in the line of
duty when that condition is aggravated by the military service.  The
Surgeon's Inquiry further


concluded that although he had rectal problems in the past, his fistula
could have been new and that his duty likely caused the condition.  A
recommendation was made by the Headquarters, 9th Regional Readiness
Command, Health Readiness Coordinator that the LOD determination dated 19
July 2001 remained as “yes”, unless medical records were made available
that documented a pre-existing condition.  In a memorandum dated 8 June
2004, the commanding general approved the LOD determination.

12.  Undated MEB proceedings indicate that the applicant was at Fort
Richardson, Alaska, when the board convened to determine whether the
applicant should be referred to a PEB.  The MEB determined that the
applicant was suffering from chronic anal fissure that was incurred while
entitled to basic pay and did not exist prior to service.  The MEB further
determined his condition was permanently aggravated by service and that he
should be referred to a PEB for consideration.

13.  On 15 June 2005 July 2005, a PEB convened to determine the applicant
fitness for retention in the USAR.  The PEB's diagnosis was chronic rectal
pain with slight, or occasionally moderate, leakage of stool with onset in
1978 while on active duty.  His status was post multiple rectal surgeries
for perirectal abscesses, hemorrhoids and fissures about every 3 years
while in civilian status. The PEB determined LOD for flare of symptoms
during annual training for MOS school in 2001, not permanently service
aggravated.  The PEB proceedings indicate that the applicant did not
require surgery during annual training, returned to civilian employment,
and did not have surgery again until 2004.  The PEB noted his history of
chronic fissure and weak but functional sphincter and indicated that he was
"Currently rated 100% by the VA."  The board indicated that his function
limitations in maintaining the appropriate level of adaptability, cased by
the physical impairments made him medically unfit to perform the duties
required of a Soldier in his rank and MOS.  The PEB went on to indicate
that his conditions listed in NARSUM were considered and found to be not
unfitting and therefore, not ratable.  The PEB informed the applicant that
the evidence established that his disability was not unfitting at the time
of his release from active duty and there is no documentation of permanent
aggravation resulting from subsequent military duty.  He was told that his
then current state of unfitness was the result of natural progression in a
civilian (drilling Reserve) status and was not compensable in accordance
with paragraph 5, United States Army Physical Disability Agency (USAPDA)
policy and guidance.  He was also told he should contact a VA counselor to
learn about available benefits.  The PEB recommended that the applicant be
separated from the service without severance pay or disability benefits.

14.  In a memorandum dated 28 July 2005, the applicant was informed that
the USAPDA noted his disagreement with the PEB’s findings and reviewed his
entire case.  The USAPDA concluded that his case was properly adjudicated
by the PEB which correctly applied the rules that govern the Physical
Disability Evaluation System in making its determination.  The applicant
was informed that the findings and recommendation of the PEB were supported
by substantial evidence and were therefore affirmed.  He was again informed
that he may be eligible for medical care through the VA if they determine
that his illness or injury is service-connected.

15.  On 15 July 2005, the applicant's PEB proceedings were corrected to
delete the statement "Currently rated 100% by the VA."

16.  On 28 July 2005, orders were published discharging the applicant from
the USAR, without severance pay, under the provisions of Army Regulation
635-40, as a result of physical disability, with an effective date of
12 August 2005.

17.  On 6 April 2004, VA notified the applicant that basic eligibility to
Dependents' Education Assistance was established on 31 March 2006 and that
his entitlement to individual unemployability was continued based on
permanency.

18.  Army Regulation 635-40 provides that the medical treatment facility
commander with the primary care responsibility will evaluate those referred
to him and will, if it appears as though the member is not medically
qualified to perform duty or fails to meet retention criteria, refer the
member to an MEB.  Those members who do not meet medical retention
standards will be referred to a PEB for a determination of whether they are
able to perform the duties of their grade and military specialty with the
medically disqualifying condition.  If the PEB determines that an
individual is physically unfit, it recommends the percentage of disability
to be awarded which, in turn, determines whether an individual will be
discharged with severance pay or retired.  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.  In this
regard, the Army rates only conditions determined to be physically
unfitting, thus compensating the individual for loss of a career.

19.  Title 38, United States Code, sections 1110 and 1131, permit the 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
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.  Furthermore, unlike the
Army, 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 rates only conditions determined to be
physically unfitting at the time of discharge, thus compensating the
individual for loss of a career; while the DVA 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 DVA disability pension.  By law, a
veteran can normally be compensated only once for a disability.  If a
veteran is receiving a DVA 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 DVA pension and military
retirement.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant's contentions have been noted.  However, the fact that he
desires to have his records corrected to show he was medically retired is
an insufficient basis for granting the relief requested.  The available
medical records show he went before an MEB and a PEB and neither board
determined that his right eye injury was an unfitting condition.  The PEB
considered his chronic rectal pain and surgeries and found that he should
be separated without disability benefits.

3.  The available records indicate that the applicant is being properly
compensated by the DVA for the disabilities which were determined to have
been incurred in or aggravated by active military service.  He has
submitted no evidence to show that what the Army did was incorrect.

4.  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.

5.  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

___KW __  __LD ___  ___EF __  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.





                                  _____ Kenneth Wright _______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013560                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070410                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  177  |108.0000/DISABILITY RETIREMENT          |
|2.  179                 |108.0300/PERCENTAGE OF DISABILITY       |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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