IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100019295 


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 earlier request that his discharge with severance pay be changed to a medical retirement.

2.  The applicant states he applied for Combat Related Special Compensation (CRSC), but he was denied because he was not medically retired.  He was discharged from the New Jersey Army National Guard (NJARNG) after he was found medically unfit for retention.  He believes he should have been medically retired instead.

3.  The applicant provides:

* a letter from the U.S. Army Human Resources Command (HRC), Alexandria, VA, denying him CRSC
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Orders D76-31 (discharge orders)
* Department of Veterans Affairs (VA) appeal decision

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

Counsel states the applicant suffered an injury while in a training status with the ARNG.  The injury led to his termination of his ARNG service with a 20-percent disability rating.  He should be entitled to a medical retirement.


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 AR20090021141 on 21 September 2010.

2.  The applicant submitted a copy of his VA appeal decision and a letter from HRC which were not previously considered by the ABCMR.  Therefore, they are considered new evidence and, as such, warrant consideration by the Board.

3.  The applicant's records show he was born on 24 August 1950.  He enlisted in the Regular Army on 24 February 1970 and he was honorably released from active duty on 23 December 1971.

4.  He enlisted in the NJARNG on 24 February 1976 and held military occupational specialty 11B (Infantryman).  He served through multiple extensions in the ARNG with the 3rd Battalion, 113th Infantry, Riverdale, NJ, and attained the rank/grade of staff sergeant (SSG)/E-6.

5.  The complete facts and circumstances surrounding his injury and subsequent determination of fitness are not available for review with this case.  However, his records contain:

	a.  Orders D76-31 issued by the U.S. Army Military Personnel Center (now known as HRC), Alexandria, VA, dated 25 April 1985, direct his discharge from the ARNG effective 23 May 1985 with a 20-percent disability and entitlement to severance pay.

	b.  NGB Form 22, dated 23 May 1985, shows he was honorably discharged from the ARNG in the rank/grade of SSG/E-6 for being medically unfit for retention.

6.  He submitted:

	a.  A letter from HRC to his Member of Congress, dated 8 April 2010, states the applicant did not meet preliminary eligibility for CRSC.

	b.  A VA appeal decision, dated 28 October 1994, shows he claimed to have suffered a right knee injury while performing riot control formations with the ARNG in June 1983 when he felt a sharp pain to his knee and his leg twisted under him.  He also claimed service-connected disability compensation for hearing loss.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.

8.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the physical evaluation board rates all disabilities using the VA Schedule for Rating Disabilities.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

9.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

10.  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, may arrive at a different disability rating based on the same impairment.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was medically retired instead of separated with a 20-percent disability and entitlement to severance pay.

2.  The evidence of record shows the applicant served in the NJARNG.  He appears to have suffered a knee condition that resulted in a finding of unfitness for retention in the ARNG and led to his discharge with entitlement to severance pay.

3.  Although his physical evaluation board proceedings are not available for review, by law, a disability rating of less than 30 percent entitles the member to severance pay while a disability rating of 30 percent or more entitles the member to medical retirement.  Since his rating was 20 percent, he could not be entitled to a medical retirement.  Absent evidence to the contrary, it is presumed he was properly rated at 20 percent.

4.  An award of a rating by another agency does not establish error by the Army. 
Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) affects the individual's civilian employability.

5.  In view of the foregoing, he is not entitled to 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090021141, dated 21 September 2010.



      ____________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)                                         AR20100019295



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100019295



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1