IN THE CASE OF:	  

		BOARD DATE:	        25 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080001958 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge by reason of disability with severance pay be changed to a medical retirement. 

2.  The applicant states, in effect, that he was unjustly discharged with severance pay and a 0% disability rating; however, all of his disabilities were not considered by the Medical Evaluation Board (MEB) and contends that had they considered them, he would have been medically retired with at least a 30% disability rating.  He further states that he is currently receiving a 60% disability rating from the Department of Veterans Affairs (VA) and believes that if the Army had properly considered all of his disabilities, he would have been retired instead of being discharged.

3.  The applicant provides a copy of his Physical Evaluation Board (PEB) proceedings, a copy of his DD Form 214, and a copy of his VA Rating Decision. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 3 February 2004 for a period of 5 years, training as a cannon crewman and a $12,000 cash enlistment bonus.  He completed his one-station unit training (OSUT) at Fort Sill, Oklahoma and was transferred to Fort Stewart, Georgia for assignment to a field artillery battery.   
2.  He deployed to Iraq with his unit from 29 January 2005 to 14 January 2006 and was advanced to the pay grade of E-4 on 1 February 2006.

3.  On 12 June 2007, a PEB convened at Fort Sam Houston, Texas to evaluate the applicant’s condition of pain and instability, right ankle.  The PEB determined that the applicant was physically unfit for duty and recommended that he be discharged with severance pay with a 0% disability rating.  

4.  On 5 August 2007, the applicant was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24B (3), for disability, severance pay.  He had served 3 years, 6 months and 3 days of total active service and received $15,064.80 in severance pay benefits.  

5.  On 16 August 2007, the VA gave the applicant a 60% combined disability rating for sleep apnea (50%), right ankle strain (20%), and torn meniscus, right knee (10%).

6.  In the processing of this case a staff advisory opinion was obtained from the United States Army Physical Disability Agency (PDA) which indicates that all of the applicant’s conditions were listed on his Report of Medical History (DD Form 2807-1) dated 10 April 2007 and the MEB conducted on 19 April 2007 listed only his unstable right ankle because it was the only condition that was affecting his military duties.  On 4 May 2007, the applicant affirmed that the right ankle was the only current diagnosis, that his MEB was complete and that all medical documents had been provided to the MEB.  A PEB conducted on 12 June 2007 found the applicant unfit for his right ankle pain and rated him at 0% in accordance with the Army’s pain policy.  Officials at the PDA further opined that the applicant’s other conditions were not listed because of their minimal affect on his daily duty performance and because they met medical retention standards.  Additionally, had his sleep apnea and right knee pain been considered by the  PEB, the findings would not have changed.  Officials at the PDA recommended that no change to his records be made.  The advisory opinion was provided to the applicant for comment and to date, no response has been received by the staff of the Board.    

7.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  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 different positions.  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.

8.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides that the mere presence of an 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 member may reasonably be expected to perform because of his or her office, rank, grade or rating.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge on 5 August 2007 should be changed to a retirement due to at least a 30 percent permanent physical disability rating based on the VA’s disability rating of 60 percent.  

2.  The fact that the DVA awarded the applicant a 60 percent service-connected disability rating was noted.  However, as previously mentioned, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  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 different positions.  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.

3.  While all of the applicant’s disabilities were not listed in the PEB proceedings, it appears that all were considered and only those that were determined to be unfitting were listed and rated.  The lack of listing his disabilities does not constitute an error or injustice as it appears that it would have had no effect on the disability ratings he received because they were not considered disabling by the Army at the time.

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 this requirement.                  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.





      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080001958





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ABCMR Record of Proceedings (cont)                                         AR20080001958



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