IN THE CASE OF:  

		BOARD DATE: 24 February 2015

		DOCKET NUMBER:  AR20140011634


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 correction of his military records to show he was retired due to physical disability.

2.  The applicant states he was given a 60 percent disability rating by the Department of Veterans Affairs (VA) but only received a 20 percent disability rating from the U.S. Army when he retired.  He believes the Army rating is unjust and wants the Army to increase its rating and grant him a retirement based on his medical condition.

3.  The applicant provides copies of:

* Medical documents from the Texas Pain and Spine Institute, dated between March and May 2012 (14 pages)
* Letter from the Physical Disability Board of Review (PDBR), dated 
12 June 2014

CONSIDERATION OF EVIDENCE:

1.  On 29 January 1998, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 13B (Cannon Crewmember).



2.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) approved on 24 October 2011 shows that an informal PEB reconsidered the applicant's physical condition on 3 October 2011.  The PEB found the applicant unfit due to:

	a.  VA Schedule for Rating Disabilities (VASRD) code 5237 for a lumbar strain rated at 10 percent disabling; and

	b.  VASRD code 5271 for right ankle osteoarthritis rated at 10 percent disabling.

	c.  He was given a combined disability rating of 20 percent.

	d.  The PEB also indicated the Medical Evaluation Board (MEB) had listed four additional medical conditions which the PEB determined were not unfitting and therefore not ratable because they did not limit any of the applicant's Soldier functions.

	e.  The PEB recommended that the applicant be separated with severance pay, if otherwise qualified.  The applicant was counseled regarding the PEB findings and determination.  He concurred with the findings.

3.  The applicant's DD Form 214 shows he was discharged on 22 January 2012 due to disability, severance pay, combat related (enhanced).  He was a staff sergeant, pay grade E-6 and had completed 13 years, 11 months, and 24 days of creditable active duty service.

4.  The medical documents provided by the applicant indicate that he was evaluated and treated by the Texas Pain and Spine Institute for lower back pain.

5.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30-percent disabling.  It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

6.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was retired due to physical disability because he has received a higher disability rating from the VA.

2.  The available evidence shows the applicant was evaluated by a PEB while on active duty and he was found unfit for duty due to two medical conditions and given a combined disability rating of 20 percent.  He concurred with these findings and was subsequently discharged with severance pay.

3.  The applicant has not provided any documentary evidence showing the VA provided him a higher rating for the two conditions found unfitting by the PEB.  It is noted that the applicant suffered from four other medical conditions that were not determined to be unfitting.  It is highly probable that the VA rating to which the applicant refers also includes those additional conditions which did not qualify to receive a rating by the Army.

4.  There is no evidence showing that what the Army did at the time of his discharge was in error or unjust.

5.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty, it awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability and/or social functioning.  Furthermore, 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 must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

6.  In view of the above, the applicant's request should be denied.



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)                                         AR20120010236



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ABCMR Record of Proceedings (cont)                                         AR20140011634



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