RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 October 2007
      DOCKET NUMBER:  AR20070002416


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Ann M. Campbell               |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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 effect, that his disability with severance
pay discharge be voided and that he be allowed to retire by reason of
disability.

2.  The applicant states, in effect, that he was not allowed to retire and
was unjustly denied medical retirement even though his total medical
disabilities were rated at 20 percent (%) or greater at the time of his
discharge.  He claims he was granted a 20%/10% disability rating instead of
a 30% rating and was not medically retired.

3.  The applicant provides a self-authored statement and Department of
Veterans Affairs (VA) Rating Decision in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 3 December 1986.  His record shows that the highest
rank he attained while serving on active duty was staff sergeant (SSG).  It
also shows he was reduced to sergeant (SGT) on 20 December 2004 and to
specialist (SPC) on 21 January 2005.

2.  On 19 July 2005, a Medical Evaluation Board (MEB) diagnosed the
applicant with coronary artery disease (CAD) and lumbar spondylolisthesis.
The MEB also listed hypertension, hyperlipidema, depression, left knee
meniscus tear, obstructive lung disease, defective viual acuity and
hypertensive retinopathy that did not meet retention standards.

3.  On 20 July 2005, the applicant concurred with the MEB findings and
recommedations and certified that the MEB accurately covered all of his
medical conditions.

4.  On 27 July 2005, an informal Physical Evaluation Board (PEB) found the
applicant's CAD condition unfitting, rated at 10% and recommended he be
separated with severance pay.  It further determined that the applicant's
back condition was long standing (9 years) and that there was insufficient
evidence to indicate the condition caused the applicant to be unfit for
duty.

5.  On 5 August 2005, the applicant concurred with the findings and
recommendations of the PEB and waived his right to a formal hearing.  On
8 August 2005, he changed his election and requested a formal hearing.

6.  On 23 August 2005, a formal PEB found the applicant unfit for both CAD
and his back condition.  It awarded a 20% disability rating and recommended
the applicant be separated with severance pay.  The applicant concurred
with the findings and recommendations of this PEB and on 31 August 2005,
the PEB was approved for the Secretary of the Army.

7.  On 11 October 2005, the applicant declined to submit a Continuation on
Active Duty (COAD) request and requested separation with severance pay.

8.  On 12 October 2005, the applicant was honorably separated by reason of
disability with severance pay.  The separation document (DD Form 214) he
was issued at the time shows he completed a total of 18 years, 10 months,
and
12 days of active military service and that he received disability
severance pay in the amount of $69,796.80.

9.  In connection with the processing of this case, an advisory opinion was
obtained from the Deputy Commander of the United States Army Physical
Disability Agency (USAPDA).  This official outlines the facts and
circumstances surrounding the applicant's processing through the Army
Physical Disability Evaluation System (PDES).  He states the applicant has
provided no evidence of military disability processing errors and the
submission of VA decisions are not evidence of any PEB errors.  He further
states the applicant was offered the opportunity to file for COAD and
remain on active duty to reach retirement, but declined the offer.  He
further states that the PEB findings were supported by a preponderance of
the evidence, were not arbitrary or capricious and were not in violation of
any statutes, directives or regulations.  He further points out that as a
result of a determination by the Army Grade Determination Board, the
applicant's severance pay grade was SSG.  He recommends the applicant's
military disability ratings remain unchanged.

10.  On 27 August 2007, the applicant provided a rebuttal to the USAPDA
advisory opinion.  In it, he stated that at the time it rendered its
decision, the PEB was aware that he was suffering from severe clinical
depression.  He further states that they were also aware his decision to
accept severance pay and the
20% disability rating was made while he was under extreme duress due to his
assignment to a hostile work environment.  He states the reason he declined
COAD and the opportunity to remain on active duty to reach retirement was
that he would have had to remain in this hostile work environment for an
additional year and two months.

11.  The applicant further states that commanders and senior
noncommissioned officer (NCO) leadership in his unit fabricated
unsubstantiated accusations against him not once but twice in order to
reduce him in rank from a SSG to a SPC.  He claims he was harassed to the
point he had to file an Inspector General (IG) complaint and submit a
Congressional Inquiry to try and remove himself from the unit.  He claims
he was on his hospital bed after his heart attack and they were practically
at his bedside reading him his Article 15.  He claims the unit was a highly
deployable unit and did not have much use for disabled Soldiers.  He claims
that had he not been in such a non-supportive unit and hostile work
environment, and had he not been clinically depressed, he never would have
made the decision to accept a 20 percent disability rating and miss out on
the opportunity to retire.  He also states that given the Army Grade
Determination Review Board (AGDRB) determined he served satisfactorily as a
staff sergeant (SSG), he would like his separation document corrected to
reflect this rank.

12.  The applicant provides a VA Rating Decision, dated 16 December 2005,
which shows the applicant was granted service connection for the following
conditions at the disability rating percentage indicated:  CAD (30%);
Degenerative Disc Disease (10%); Depression (30%); Left Knee Meniscus Tear
(0%); Hypertension (0%); and Deviated Nasal Septum (0%).  Service
connection for Hyperlipidemia and for stomach ulcer was denied.  He also
provides a
VA Rating Decision, dated 27 September 2006, which granted him service
connection for Obstructive Sleep Apnea with a 50% disability rating.

13.  Army Regulation 635-40 establishes the Army Physical Disability
Evaluation System (PDES) and sets forth policies, responsibilities, and
procedures that apply in determining whether a Soldier is unfit because of
physical disability to reasonably perform the duties of his or her office,
grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards
of unfitness because of physical disability.  It states, in pertinent part,
that the mere presence of impairment does not, of itself, justify a finding
of unfitness because of physical disability.  In each case, it is necessary
to compare the nature and degree of physical disability present with the
requirements of the duties the Soldier reasonably may be expected to
perform because of their office, grade, rank, or rating.

14.  Paragraph 3-5 of the same regulation contains guidance on rating
disabilities.  It states, in pertinent part, that there is no legal
requirement in arriving at the rated degree of incapacity to rate a
physical condition which is not in itself considered disqualifying for
military service when a Soldier is found unfit
because of another condition that is disqualifying.  Only the unfitting
conditions or defects and those which contribute to unfitness will be
considered in arriving at the rated degree of incapacity warranting
retirement or separation for disability.

15.  Chapter 6 of the disability regulation contains the policy on
Continuation on Active Duty (COAD) and Continuation on Active Reserve
(COAR) states of unfit Soldiers.  It prescribes the criteria and procedures
under which Soldiers who have been determined unfit by the PDES may be
continued on active duty (COAD) or in active reserve (COAR) status as an
exception to policy.  COAD applies only to officers on the active duty list
and Regular Army enlisted Soldiers.  COAR applies to Reserve Component (RC)
Soldiers determined unfit while mobilized, who may only request
continuation in their pre-mobilization status or in the Individual Ready
Reserve (IRR).  They are ineligible for COAD, or otherwise being accessed
onto the active duty list as a COAD.  The Soldier may return to a mobilized
status subject to mobilization policy.

16.  Title 38, United States Code, sections 1110 and 1131, 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.  The VA can evaluate a veteran throughout his
lifetime, adjusting the percentage of disability based upon that agency's
examinations and findings.  However, these changes do not call into
question the application of the fitness standards and the disability
ratings assigned by proper military medical authorities during the
applicant’s processing through the Army PDES.

17.  Army Regulation 635-5 (Separation Documents) prescribes the separation
documents that must be prepared for Soldiers on retirement, discharge,
release from active duty service, or control of the Active Army.  It also
establishes standardized policy for preparing and distributing the DD Form
214.  Chapter 2 provides instructions for preparing the DD Form 214.  The
instructions for Item 4a (Grade, Rate or Rank) and Item 4b (Pay Grade)
state that the rank and pay grade held on the date of separation will be
entered in these items.  There are no provisions for correcting these
entries based on a determination by the AGDRB.





DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was unjustly denied retirement and
medical treatment and that his total disability rating should have been 30
percent or greater was carefully considered.  However, there is
insufficient evidence to support these claims.

2.  The evidence of record confirms the applicant was properly processed
through the PDES and that he received disability ratings of 10 percent for
CAD and 10 percent for low back pain.  The applicant concurred with the
findings and recommendations of this PEB and when provided the opportunity,
he declined to submit a COAD request and requested separation with
severance pay.

3.  The VA Rating Decision provided by the applicant shows he was granted
service-connection and disability ratings for several medical conditions
other than the two that resulted in his separation processing through the
Army's PDES.  However, there is no evidence that suggests these conditions
were unfitting for further service, as is required in order for them to
contribute to the disability rating assigned by the PEB.  As a result,
there is an insufficient evidentiary basis to change the 20% disability
rating assigned the applicant at the time of his discharge.

4.  While both the Army and the VA use the VA Schedule for Rating
Disabilities (VASRD), not all of the general policy provisions set forth in
the VASRD apply to the Army.  The VA may rate any service-connected
impairment, thus compensating for loss of civilian employment.  It may also
award 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. It can also evaluate a veteran
throughout his lifetime, adjusting the percentage of disability based upon
that agency's examinations and findings.  However, any change in the
disability rating granted by the VA would not call into question the
application of the fitness standards and the disability ratings assigned by
proper military medical authorities during the applicant’s processing
through the Army PDES.  The Army rates only conditions that are determined
to be physically unfitting for further military service, thereby
compensating the individual for the loss of his or her military career.

5.  The applicant’s request to change the rank and pay grade listed on his
DD Form 214 based on the AGDRB determination that he served satisfactorily
as a SSG was also carefully considered.  However, the governing regulation
requires
the rank and pay grade held upon separation to be entered in the DD Form
214.  There are no provisions for correcting these items based on an AGDRB
decision.
6.  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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_LMD___  __JCR___  __AMC__  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.




                                     __Ann M. Campbell___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002416                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/10/02                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2005/10/12                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability-Severance Pay                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]