IN THE CASE OF:	  

		BOARD DATE:	  5 August 2008

		DOCKET NUMBER:  AR20080008519 


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 medical retirement.

2.  The applicant states, in effect, that he was discharged from the Army with a 20 percent (%) disability rating on 28 November 2006; however, the Department of Veteran Affairs (VA) awarded him an 80% disability rating, effective 
29 November 2006.

3.  The applicant provides the following documents in support of his application: Headquarters, III Corps and Fort Hood Orders Number 296-0135, dated 
23 October 2006; Physical Evaluation Board (PEB) Proceedings; VA Rating Decision, dated 15 February 2007; and Disabled American Veterans Letter, dated 30 Aril 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army and entered active duty on 29 May 2002.  He was trained in, awarded, and served in military occupational specialty (MOS) 13D (Field Artillery Automated Technical Data Systems Specialist).

2.  On 12 October 2006, a Physical Evaluation Board (PEB) at Fort Sam Houston, Texas, considered the applicant’s case.  That PEB rated the applicant's back pain at 10 %, chronic neck pain at 10 %, and obstructive sleep apnea at 0% under VA disability codes 5238, 5242, and 6847 respectively.
3.  The PEB found that the applicant’s medical conditions prevented his performance of duty in his grade and specialty and recommended his separation with severance pay based on a combined 20% disability rating.  

4.  On 23 October 2006, Headquarters, III Corps and Fort Hood, Texas issued Order Number 296-0135, which directed the applicant’s discharge from the Army on 28 November 2006.  This order also indicated he received a 20% disability rating and was authorized severance pay.

5.  On 28 November 2006, the applicant was honorably discharged, in the rank of sergeant, by reason of disability with severance pay.  The DD Form 214 he was issued at the time shows he completed a total of 4 years and 6 months of active military service.  The applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated) on the date of his discharge. 

6.  The applicant provides a VA Rating Decision, dated 15 February 2007, which shows he received the disability ratings indicated for the conditions listed: obstructive sleep apnea - 50%; degenerative disc disease, lumbar spine - 20%; degenerative joint disease, cervical spine - 10 %; patellofemoral pain syndrome, right knee - 10 %; chronic right shoulder trapezius strain (dominant) - 10 %; patellofemoral pain syndrome, left knee - 10 %; chronic left shoulder trapezius strain (non-dominant) - 10%; hypertension – 0 %; gastro esophageal reflux disease - 0 %; migraine headaches - 0%; Type II diabetes mellitus - 40%; and chronic left ankle sprain - 10%.  It also shows the applicant's combined rating was 80%.

7.  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.  Paragraph 3-5 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.

8.  Title 38, United States Code, sections 310 and 331, permits 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 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 employability.  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, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he should be authorized medical retirement because subsequent to the 20% disability rating he received upon his discharge from the Army, he received an 80% VA disability rating was carefully considered. However, there is insufficient evidence to support this claim.    

2.  The evidence of record confirms that a PEB, after examining all the medical evidence, determined the applicant was unfit for further service based on his back pain, chronic neck pain, and obstructive sleep apnea conditions and recommended his separation with severance pay based on a 20% disability rating.  The record further confirms the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the PDES process.

3.  Although the applicant was rated at 80% by the VA, this factor alone does not support a change to the disability rating assigned by the PEB.  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.  

4.  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.  As a result, absent any error or injustice in the applicant's PDES processing, there is an insufficient evidentiary basis to change the 20% disability rating assigned the applicant by the PEB at the time of his discharge.

5.  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

___x____  ___x____  ___x____  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.




      _______ _  x _______   ___
               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)                                         AR20080008519



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ABCMR Record of Proceedings (cont)                                         AR20080008519


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