RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 October 2007
	DOCKET NUMBER:  AR20070009065 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Mr. Chester A. Damian

Member

Mr. Ronald D. Gant

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 consideration for an upgrade of his discharge from "Disability-Severance Pay" to "Retirement."

2.  The applicant states that the Army made an error when it separated him for disability with severance pay instead of retirement.  He further adds that when he went to the Department of Veterans Administration (DVA), they gave him 40 percent back to the date of his discharge. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of the DVA Rating Decision, dated 27 February 2007, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the Regular Army on 22 August 1996 for a period of 2 years and 19 weeks.  He completed basic combat and advanced individual training and was awarded military occupational Specialty (MOS) 31L (Wire System Installer).  He was honorably released from active duty on 1 January 1999 for completion of required active service.

2.  On 15 December 1999, the applicant enlisted in the Florida Army National Guard (FLARNG) for a period of 5 years, 2 months, and 17 days. 

3.  On 6 July 2000, the applicant injured his left hand during a training exercise with his unit.  He was transferred to the Troop Medical Clinic for treatment.  The Adjutant General, State of Florida, determined on 11 February 2002, that his injury was in the line of duty. 

4.  The applicant's medical records are not available for review in this case.  However, on 12 September 2006, a Physical Evaluation Board (PEB) convened and found that the applicant's condition of chronic back pain prevented him from performing his duties and determined that he was physically unfit.  The applicant was rated under the DVA Schedule for Rating Disabilities (VASRD) code 5241 and granted a 10 percent disability rating.  The PEB also recommended the applicant be separated from the Army with severance pay if otherwise qualified.

5.  On 22 September 2006, the applicant was advised of the findings and recommendation of the PEB. 

6.  On 13 October 2006, the applicant was honorably discharged from the Army in accordance with paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of disability/severance pay.  The DD Form 214 he was issued confirms he completed a total of 6 years,10 months, and 15 days of creditable active military service.

7  The DVA Decision Rating statement submitted by the applicant shows that the applicant had filed a disability claim and that based on the evidence submitted, the DVA evaluated the applicant's medical condition and made rating decisions to each of the applicant's claimed conditions.

8.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  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.  

9.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in AR 40-501 (Standards of Physical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

10.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states 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.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the soldier is fit. 



11.  Paragraph 8-4 of Army Regulation 635-40 requires a commander to refer a Soldier to the responsible medical treatment facility when the unit commander believes that Soldier is unable to perform the duties of his or her office, grade, rank or rating because of physical disability.  This provision of regulation requires that the request will be in writing and will state the commander’s reasons for believing that the soldier is unable to perform his or her duties

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded from "Disability-Severance Pay" to "Retirement."

2.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and that his disability was properly rated in accordance with the VASRD.  His separation for disability was in compliance with law and regulation.  He concurred with the findings and recommendations, and this with decision to separate him.  In view of the foregoing, the applicant is not entitled to a relief.

3.  An award of the DVA rating does not establish entitlement to medical retirement or separation from the Army.  The DVA operates under different laws and its own policies and regulations.  It neither has the authority nor the responsibility to determine medical unfitness for military service.  The DVA awards ratings because a medical condition is related to service (service-connected) and affects the individual's civilian employability.  Additionally, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__cd____  __cad___  __rdg___  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.




							Carmen Duncan
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20070009065
SUFFIX

RECON

DATE BOARDED
20071030
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
108.0000
2.

3.

4.

5.

6.