IN THE CASE OF:	  

		BOARD DATE:	       10 February 2009

		DOCKET NUMBER:  AR20080015597 


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, the U.S. Army grant him a higher disability rating for his service-connected injuries.

2.  The applicant states, in effect, the Physical Evaluation Board (PEB) only considered his left shoulder injury, granting him a 20 percent disability rating and $30,000 severance pay.

   a.  The applicant states his military records contain a total of six line of duty (LOD) investigations and the following injuries were not considered by the PEB:  hip (trochanteric bursitis); heel (bilateral plantar fasitis spur syndrome); depressive disorder; bilateral carpal tunnel syndrome of both hands; hyperkeratosis left fourth toe; bilateral flat foot; and gastroenteritis.

   b.  The applicant states he had a total of 18 years of Army National Guard (ARNG) service and he was two years from retirement when he was separated.  He also states that if all of the medical conditions documented in the six LODs were considered, he believes he would have been given a higher disability rating percentage.

   c.  The applicant states that four of his injuries occurred in a combat zone, including his shoulder, hip, back, and heel injuries, and the six sworn statements provide evidence of this fact.

   d.  The applicant concludes by stating there is an LOD investigation (LODI) for his back, which is feeling good at the present time, but he offers the LODI in evidence in case of further problems in the future.
 
3.  The applicant provides copies of two Department of Veterans Affairs (DVA), Houston Regional Office, Houston, Texas, Rating Decisions, dated 29 November 2006 and 11 February 2008; eight DA Forms 2173 (Statements of Medical Examination and Duty Status) with enclosures, five dated 19 October 2004,
two dated 8 August 2006; and one dated 31 January 2006; six DA Forms 2823 (Sworn Statements), dated 24 April 2006, 27 April 2006, 1 May 2006, 9 May 2006, two dated 3 May 2006; three Headquarters, Brooke Army Medical Center, Fort Sam Houston, Texas, memoranda, dated 2 February 2006, 10 February 2006, and 20 April 2006; Headquarters, U.S. Army Human Resources Command (USA HRC), Alexandria, Virginia, memorandum, dated 31 May 2006; two Standard Forms (SF) 600 (Chronological Record of Medical Care), dated
14 December 2005 and 17 January 2006; Headquarters, Texas Military Forces, Joint Forces Headquarters, Adjutant Generals Department, Austin, Texas, Orders 329-276, dated 25 November 2003; Headquarters, USA HRC, Alexandria, Orders A-10-410308, dated 12 October 2004; Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Texas, Orders 308-48, dated
3 November 2004; Headquarters, U.S. Army Medical Department Center and School, Fort Sam Houston, Orders 160-0102, dated 9 June 2006; Headquarters, USA HRC, Alexandria, Orders A-10-410308A01, dated 31 March 2005; Headquarters, USA HRC, Alexandria, Orders A-10-410308A02, dated
5 October 2005; Headquarters, USA HRC, Alexandria, Orders A-10-410308A03, dated 16 March 2006; Headquarters, U.S. Army Medical Department Center, Fort Sam Houston, Orders 166-0107, dated 15 June 2006; DD Form 214 (Certificate of Release or Discharge from Active Duty) with an ending date of
20 June 2006; and an Army Times, Newslines Pay and Benefits article, Board to reassess disability ratings for some troops, undated.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military personnel records show he enlisted in the Army National Guard of the United States (ARNGUS) and Army National Guard of Texas (TXARNG) on 7 January 1988.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  The applicant was honorably discharged from the ARNGUS and TXARNG on 1 October 1991 based on failure to meet Army weight control standards.  At the time he had completed 3 years,
8 months, and 25 day of net service this period and total service for pay.  The 

applicant was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining military service obligation and he was honorably discharged from the USAR on 6 October 1994.  On 16 July 1996, the applicant enlisted and reentered the ARNGUS and TXARNG.

2.  The applicant's military personnel records contain a DA Form 2173, dated
31 January 2006, with enclosures, that shows while at Fort Sam Houston, Texas, the applicant was diagnosed with obstructive sleep apnea on 7 November 2005.  On 3 February 2006, the approving authority reviewed the LODI for completeness and determined the applicant’s disease was incurred in line of duty.

3.  The applicant's military personnel records contain a DD Form 214 that shows the applicant was ordered to active duty on 7 December 2003 in support of Operation Iraqi Freedom and served in Iraq from 14 February 2004 to 3 August 2004.  He was honorably discharged on 20 June 2006 in accordance with the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), based on disability with severance pay.  This document also shows that at the time of his discharge the applicant had completed 2 years, 6 months, and 10 days of net active service this period; 4 months and 7 days of total active service; and 10 years, 10 months, and 8 days of total prior inactive service.  Item 18 (Remarks), in pertinent part, contains the entry “DISABILITY SEVERANCE PAY--$00.00.”

4.  The applicant’s military personnel records are absent a complete copy of his Medical Evaluation Board (MEB) or PEB proceedings.

5.  In support of his application, the applicant provides the following documents.

   a.  Headquarters, Texas Military Forces, Joint Forces Headquarters, Adjutant Generals Department, Austin, Orders 329-276, dated 25 November 2003, that show the applicant was ordered to active duty on 7 December 2003 for a period not to exceed 545 days in support of Operation Iraqi Freedom.

   b.  Headquarters, USA HRC, Alexandria, Orders A-10-410308, dated
12 October 2004, that show, in pertinent part, the applicant was retained on active duty for a period of 179 days to voluntarily participate in the Reserve Component Medical Holdover Medical Retention Processing Program for completion of medical care and treatment.

   c.  DA Form 2173, dated 19 October 2004, with enclosures, that shows, on or about 1 January 2004, while deployed to Fort Bliss in support of Operation Iraqi Freedom, the applicant developed gastroenteritis.  On 22 October 2004, the approving authority reviewed the LODI for completeness and determined the applicant’s condition was incurred in line of duty.

   d.  DA Form 2173, dated 19 October 2004, with enclosures, that shows, on or about 1 April 2004, while deployed to Iraq in support of Operation Iraqi Freedom, the applicant’s vehicle came under attack, he jumped out of his vehicle, and landed in such a way as to injure his hip.  On 22 October 2004, the approving authority reviewed the LODI for completeness and determined the applicant’s injury was incurred in line of duty.

   e.  DA Form 2173, dated 19 October 2004, with enclosures, that shows, on or about 1 April 2004, while deployed to Iraq in support of Operation Iraqi Freedom, the applicant’s vehicle came under attack, he jumped out of his vehicle catching his foot on the vehicle, and injured his heel.  On 22 October 2004, the approving authority reviewed the LODI for completeness and determined the applicant’s injury was incurred in line of duty.

   f.  DA Form 2173, dated 19 October 2004, with enclosures, that shows, on or about 1 April 2004, while deployed to Iraq in support of Operation Iraqi Freedom, the applicant’s vehicle came under attack, he jumped out of his vehicle, and landed on his hip injuring his lower back.  On 22 October 2004, the approving authority reviewed the LODI for completeness and determined the applicant’s injury was incurred in line of duty.

   g.  DA Form 2173, dated 19 October 2004, with enclosures, that shows, on or about 22 May 2004, while deployed in support of Operation Iraqi Freedom, the applicant began suffering depressive disorder, exacerbated by multiple family deaths.  On 22 October 2004, the approving authority reviewed the LODI for completeness and determined the applicant’s disease was incurred in line of duty.

   h.  Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Orders 308-48, dated 3 November 2004, that show the applicant was deployed on a Temporary Change of Station (TCS) on 4 November 2004 for a period of 179 days and assigned to Brooke Army Medical Holding, Fort Sam Houston.

   i.  Headquarters, USA HRC, Alexandria, Orders A-10-410308A01, dated
31 March 2005, that show Headquarters, USA HRC, Alexandria, Orders
A-10-410308, dated 12 October 2004, were amended to read the period of active duty was 358 days including accumulated leave with an ending date of
4 October 2005.
   
j.  Headquarters, USA HRC, Alexandria, Orders A-10-410308A02, dated
5 October 2005, that show Headquarters, USA HRC, Alexandria, Orders
A-10-410308, dated 12 October 2004, were further amended to read the period of active duty was 537 days with an ending date of 1 April 2006.

   k.  Two SFs 600, dated 14 December 2005 and 17 January 2006, that document the applicant’s outpatient appointments, including reported medical problems, active medications, medical history, diagnoses, findings, and disposition.

   l.  DA Form 2173, dated 31 January 2006, with enclosures, that shows, in April 2004, while deployed in support of Operation Iraqi Freedom, the applicant fell and landed on his left side injuring his left shoulder.  On 3 February 2006, the approving authority reviewed the LODI for completeness and determined the applicant’s injury was incurred in line of duty.

	m.  Headquarters, Brooke Army Medical Center, Fort Sam Houston, memorandum, dated 2 February 2006, subject:  Second Opinion on the Range of Motion of Left Shoulder.  This document shows, in pertinent part, the applicant requested the fullest consideration of the MEB and the opportunity to receive the maximum of 30 percent due to the range of motion.

   n.  Headquarters, Brooke Army Medical Center, Fort Sam Houston, memorandum, dated 10 February 2006, subject:  In Line of Fire for Sergeant [Applicant’s Name], 88M (Transportation Convoy) in Iraq.  This document shows, 
in pertinent part, the Assistant Noncommissioned Officer in Charge (NCOIC) of a convoy that came under attack in Iraq, in which the applicant was a driver, attests that the applicant sustained injuries in the line of fire sometime between the end of March and the beginning of April [2004].

   o.  Headquarters, USA HRC, Alexandria, Orders A-10-410308A03, dated
16 March 2006, that show Headquarters, USA HRC, Alexandria, Orders
A-10-410308, dated 12 October 2004, were further amended to read the period of active duty was 716 days with an ending date of 27 September 2006. 
   
   p.  Headquarters, Brooke Army Medical Center, Fort Sam Houston, memorandum, dated 20 April 2006, subject:  Rebuttal Physical Evaluation Board Findings Concerning the President [Name, Rank, Branch].  This document shows, in pertinent part, the applicant objected to the entire formal PEB proceedings in that they concentrated on the applicant’s wearing of the Combat Action Badge and not on his medical condition.
   
q.  Six DA Forms 2823, dated 24 April 2006, 27 April 2006, 1 May 2006,
9 May 2006, and two dated 3 May 2006, that document the sworn statements of the applicant and five Soldiers who were present during the incident when the applicant’s vehicle came under attack in Iraq in early April 2004 and, in pertinent part, attest to injuries the applicant sustained.

   r.  Headquarters, USA HRC, Alexandria, memorandum, dated 31 May 2006, subject:  Continuation of Disabled Mobilized Soldier in the Active National Guard [Applicant’s Name, Social Security Number, and Rank].  This document shows that the Chief, Mobilization Support Branch, USA HRC, advised the Commander, U.S. Army Physical Disability Agency (USAPDA), Walter Reed Army Medical Center, Washington, District of Columbia, that the applicant’s request for continuation in the active ARNG was reviewed and not favorably considered due to the applicant not meeting the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).

   s.  Headquarters, U.S. Army Medical Department Center and School, Fort Sam Houston, Orders 160-0102, dated 9 June 2006, that show the applicant was assigned to U.S. Army Transition Point, Fort Sam Houston, for separation processing on 16 June 2006.  The orders also show the applicant was authorized 20 percent disability with disability severance pay in pay grade E-5 based on
5 years, 8 months, and 17 days of service.

   t.  Headquarters, U.S. Army Medical Department Center and School, Fort Sam Houston, Texas, 166-0107, dated 15 June 2006, that show the orders assigning the applicant to U.S. Army Transition Point, Fort Sam Houston, for separation processing on 16 June 2006 were revoked.

   u.  DA Form 2173, dated 8 August 2006, with enclosures, that shows the applicant was diagnosed with hyperkeratosis left fourth toe, bilateral flat foot, on
31 January 2006, at Fort Sam Houston, after 17 years of walking and marching during his military career.  On 9 August 2006, the approving authority reviewed the LODI for completeness and determined the applicant’s injury was incurred in line of duty.

   v.  DA Form 2173, dated 8 August 2006, with enclosures, that shows the applicant was diagnosed with bilateral carpal tunnel syndrome, on 7 March 2006, at Fort Sam Houston, as a result of working as a truck driver, lifting heavy chains and changing large tires while in Iraq.  On 9 August 2006, the approving authority reviewed the LODI for completeness and determined the applicant’s injury was incurred in line of duty.

   w.  DVA, Houston Regional Office, Houston, Rating Decision, dated
29 November 2006, pertaining to the applicant.  This document shows, in pertinent part, the DVA determined the applicant’s post traumatic stress disorder, major depression without psychotic features that was rated 10 percent disabling, was increased to 50 percent; service-connection for bilateral plantar fasciitis, mild, residual, with plantar left calcaneal heel spur syndrome was granted with an evaluation of 10 percent; service-connection for trochanteric bursitis, soft tissue, left proximal thigh was granted with an evaluation of 10 percent; service- connection for gastroesophageal reflux disease was granted with an evaluation of 10 percent; service-connection for restless leg syndrome, right lower extremity was granted with an evaluation of 0 percent; and service-connection for restless leg syndrome, left lower extremity was granted with an evaluation of 0 percent, 
all effective 21 June 2006.  This document also shows, in pertinent part, service- connection for cardiac injury with chest pain, low back pain, and gastroenteritis were denied.

   x.  DVA, Houston Regional Office, Houston, Rating Decision, dated
11 February 2008, pertaining to the applicant.  This document shows, in pertinent part, the DVA determined service-connection for carpal tunnel syndrome, left upper extremity was granted with an evaluation of 10 percent; service-connection for carpal tunnel syndrome, right upper extremity was granted with an evaluation of 10 percent; and service-connection for scar, right wrist, status post nerve release for right carpal tunnel syndrome was granted with an evaluation of 10 percent, all effective 21 June 2005.  This document also shows, in pertinent part, service-connection for ventral hernia was denies, 

   y.  Army Times, Newslines Pay and Benefits article, Board to reassess disability ratings for some troops, undated, that shows the Physical Disability Board of Review was mandated by the 2008 National Defense Authorization Act and that the purpose of the Board was to reassess the accuracy and fairness of the combined disability ratings assigned service members who were discharged as unfit for continued military service since 11 September 2001.  The newspaper article also shows, in pertinent part, that only the medical condition(s) determined to be specifically unfitting for continued military service, as previously determined by the military department’s PEB, will be subject to review by the Board.

6.  In connection with the processing of this case, an advisory opinion was obtained from the Agency Legal Advisor, USAPDA, Washington, District of Columbia.  The USAPDA advisory opinion confirms that the applicant’s MEB was completed on 27 December 2005 and the MEB listed only one condition that did not meet medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement); specifically, chronic left shoulder impingement syndrome.

   a.  The MEB listed eight other conditions that did meet medical retention standards and all of the LOD conditions, except bilateral flat feet; hyperkeratosis of the fourth toe (a corn); and bilateral carpal tunnel syndrome (which was listed on the medical report, dated 17 March 2006).

   b.  The USAPDA advisory opinion confirms the MEB noted the applicant’s main complaint was his non-dominant left shoulder pain; that the applicant requested his hip pain and heel pain be noted on his MEB; and that these requests were included in the applicant's MEB report.  The applicant requested no other corrections or additions and concurred with the MEB's findings and recommendation on 17 June 2006.

   c.  On 19 January 2006, an informal PEB found the applicant unfit for his chronic left shoulder pain, rated him at 10 percent under the USAPDA’s pain policy, and recommended separation with severance pay.  The PEB found insufficient evidence to support that the applicant’s shoulder disability was the direct result of armed conflict.  The PEB also found all other conditions not unfitting and not compensable.

   d.  On 10 February 2006, a medical evaluation regarding the applicant’s pain management was completed with findings that revealed normal grip strength of the hand, with normal neuro/sensory findings.

   e.  On 13 February 2006, the applicant non-concurred with the informal PEB's findings and requested a formal PEB hearing.

   f.  On 15 March 2006, the informal PEB reconsidered their findings based upon the applicant’s non-concurrence, but found no basis to change their findings.

   g.  On 17 March 2006, a physical medicine report listed moderate right and mild left carpal tunnel syndromes and this was included in the case file.

   h.  On 24 March 2006, the applicant indicated that his physical profile should not list that he could perform certain functions.

   i.  On 5 April 2006, a formal PEB found the applicant unfit for his left shoulder pain, but increased the rating to 20 percent.  The PEB continued to find that all of the other conditions were not unfitting and that his shoulder injury was not the direct result of armed conflict.
   j.  On 13 April 2006, the applicant submitted a rebuttal claiming his shoulder injury should be classified as combat-related and submitted a statement from another Soldier in support of his request.

   k.  On 17 April 2006, the PEB responded to the rebuttal stating that contact with the applicant’s chain of command indicated that his shoulder injury was not incurred while under fire and it was not a direct result of armed combat.  The USAPDA advisory adds that just because an injury is incurred in a combat zone, or during a combat mission, does not classify the injury as a direct result of armed combat unless there is an actual combat occurring at the time that caused the injury.  The PEB found that a preponderance of the evidence did not support that claim.

   l.  The applicant had no other rebuttal issue and did not request a higher rating or unfit findings and ratings for his other noted conditions.

   m.  On 31 May 2006, the applicant’s request for continuation on active duty was denied.

   n.  The USAPDA advisory notes that the applicant was properly rated for his shoulder condition at 20 percent under the Agency’s pain policy as his physical findings did not meet any of the criteria for rating under the VA Schedule for Rating Disabilities (VASRD) 5200 through 5203.  The other conditions were considered by the PEB, but were not found to be unfitting and were not compensable.  

   o.  The USAPDA advisory concludes by stating the applicant’s claim of his shoulder injury being caused by combat was carefully considered by the PEB, the applicant’s claim was fully investigated, the PEB compared and weighed the evidence provided, and found that the preponderance of the evidence did not support such a finding.

   p.  The USAPDA advisory opinion recommends no change in the applicant’s military records.

7.  On 12 December 2008, the applicant was provided a copy of the USAPDA's advisory opinion in order to have the opportunity to respond to its contents.  To date, the applicant has not provided a response to the advisory opinion rendered in his case.

8.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with the authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The USAPDA, under the operational control of the Commander, USA HRC, Alexandria, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Title 10, U.S. Code, chapter 61, and in accordance with Department of Defense Directive (DoDD) 1332.18 (Separation or Retirement for Physical Disability) and Army Regulation 635-40.  

9.  Army Regulation 635-40, in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 (Standards of unfitness because of physical disability) of this Army Regulation, in pertinent part, 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

10.  Army Regulation 635-40, Appendix B (Army Application of the Department of Veterans Affairs Schedule for Rating Disabilities) provides, in pertinent part, that often a Soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain.  Inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of, or measure the intensity of, subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.  This document also shows that rating by analogy to degenerative arthritis as an exception to analogous rating policies may be assigned in unusual cases with a 20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.  To do otherwise would be to combine pain ratings so as to achieve a percentage of disability that would result in erroneous disability retirement.

11.  Paragraph 4-10 (The Medical Evaluation Board) of Army Regulation 635-40 provides that medical evaluation boards 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 qualification for retention based on the criteria in AR 40-501, Chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

12.  Paragraph 4-20 (Informal board) of Army Regulation 635-40 provides that each case is first considered by an informal PEB.  This paragraph states, in pertinent part, an informal board must ensure that each case considered is complete and correct.  The rapid processing intended by the use of informal boards must not override the fundamental requirement for detailed and uniform evaluation of each case.  All evidence in the case file must be closely examined and additional evidence obtained, if required.

13.  Paragraph 4-21 (Formal board) of Army Regulation 635-40, in pertinent part, provides that a Soldier is entitled to a formal hearing if requested after informal consideration by a PEB.

14.  Department of Defense Instruction (DoDI) 1332.39 (Application of the Veterans Administrations Schedule of Rating Disabilities) implements policy, assigns responsibilities, and prescribes procedures, under DoDD 1332.18, for rating disabilities of Service members determined to be physically unfit and who are ineligible for disability separation or retirement.  Section E2.A1 (Attachment
1 to Enclosure 2) provides instructions for specific VASRD codes and provides, in pertinent part, that ratings for active disease process should not be combined with ratings for residuals (5200 series).

15.  Title 38, USC, 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 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.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his records should be corrected to show a higher disability rating based on all of his service-connected injuries.

2.  The USAPDA advisory opinion confirms that all of the applicant’s medical conditions were fully considered and evaluated under the PDES by an MEB and PEB.  The evidence of record also shows that the formal PEB found the applicant unfit based on his chronic left shoulder pain, rated him at 20 percent under the USAPDA’s pain policy, and recommended separation with severance pay.  The evidence of record further shows that the PEB found insufficient evidence to support that the applicant’s shoulder disability was the direct result of armed conflict.  In addition, the PEB found all other medical conditions not unfitting and not compensable.

3.  The governing regulation shows the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The DVA (and some other government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the DVA to give the veteran the benefit of any reasonable doubt.  The fact that the DVA (or any other government agency), in its discretion, awarded the applicant a higher disability rating than that which he received from the U.S. Army, is a prerogative exercised within the policies of that agency.

4.  The evidence of record shows that the applicant was discharged with a disability rating of 20 percent effective 20 June 2006.

5.  There is no evidence to show that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  Therefore, the applicant is not entitled to correction of his records to show an adjustment to his disability rating.

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

____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)                                         AR20080015597



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ABCMR Record of Proceedings (cont)                                         AR20080015597



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