IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20090019692 


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 reconsideration of his previous request that his records be corrected by changing the narrative reason for his discharge to medical separation to show his parasthesia in areas 5 through 8 of his jaw due to nerve damage from a facial fracture (jaw) and cross-bite on his tongue during the mastication function are service connected.

2.  The applicant states he is submitting additional evidence to support his previous application requesting his separation be changed to a medical discharge.  He also states he believes his record is in error because the disabilities involving his jaw and tongue occurred during his military service.  He continues to state he was treated unfairly by the medical examiner in June 1983 which resulted in not being able to appear before a physical evaluation board.  He concludes by stating his discharge should be changed to a medical discharge based on the 0-percent service-connected rating he received from the Department of Veterans Affairs (VA).

3.  The applicant provides the following documents in support of this application which were not previously seen by the board:

* Standard Form 600 (Chronological Record of Medical Care), undated
* DA Form 3349 (Medical Condition - Physical Profile Records), dated 7 April 1980
* Standard Form 88 (Report of Medical Examination), dated 3 June 1983 
* Medical Department Activity Form 102 (Chronological Record of Medical Care)
* multiple pages of progress notes, dated 14 September 2009 through 5 November 2009
* VA Rating Decision, dated 14 July 2009

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090008648 on 22 October 2009.

2.  The applicant provided new arguments and new evidence which merit consideration by the Board.

3.  The applicant's records show he enlisted in the Regular Army on 20 April 1976.

4.  The applicant submitted an undated copy of a Standard Form 600 which shows he sought treatment due to a non-displaced right zygomatic arch from being hit in the face.

5.  The applicant submitted a copy of his DA Form 3349, dated 7 April 1980, which shows in section B6 (Individual Has the Defects Listed Below) that he was healing from a fractured jaw.

6.  The applicant submitted two copies of his Standard Form 88 which show the following:

* 9 August 1982 – "there has been no significant change in my health since my last physical examination.  Except:  operation"
* 3 June 1983 – " there has been no significant change in my health since my last physical examination.  Except:  none"

7.  The applicant was separated from active duty on 18 November 1987 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 16, based on a locally-imposed bar to reenlistment, with an honorable discharge.  He completed 11 years, 6 months, and 29 days of active military service during that period of service.

8.  The applicant submitted a copy of his VA Rating Decision, dated 14 July 2009, showing he received 0-percent service connection for non-displaced fracture of right zygomatic arch residuals.

9.  The applicant submitted copies of progress notes from the Birmingham VA Medical Center, dated 14 September 2009 to 5 November 2009, which show he was evaluated for facial numbness, a posterior right cross bite, and a slight non-pathological popping and clicking noise when he opens his mouth.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB). 
Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

11.  Title 38, U.S. Code, sections 1110 and 1131, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, a condition may be rated by the VA even though the Army never found the individual to be unfit.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant submitted evidence which shows that he continued to seek treatment for his jaw after his discharge from the Army, there is no evidence which shows the applicant was found unfit for retention due to jaw problems.

2.  There is no evidence to show the applicant's medical records were recommended for review by an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired for physical unfitness.

3.  The award of a VA rating does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency's examinations and findings.

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.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090008648, dated 22 October 2009.



      ____________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)                                         AR20090019692



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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