RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         28 March 2006
      DOCKET NUMBER:  AR20050009289


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Larry J. Olson                |     |Member               |
|     |Mr. Ronald D. Gant                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his Physical
Evaluation Board (PEB) disability rating.

2.  The applicant states, in effect, that the PEB determined that his
second and third diagnosed conditions were not unfitting and as a result he
was not assigned a disability rating for these conditions, which he
believes they should have been.

3.  The applicant provides the PEB proceedings and associated documents and
medical records in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army and
entered active duty on 18 January 2003.  He served in military occupational
specialty (MOS) 11B (Infantryman), and the highest rank he held while
serving on active duty was specialist (SPC).

2.  On 18 April 2005, a Medical Evaluation Board (MEB) referred the
applicant to a PEB for evaluation based on the following three diagnosed
conditions:  Left Shoulder Pain; Chronic Low Back Pain; and Left Knee Pain.


3.  On 20 May 2005, a PEB convened at Fort Sam Houston, Texas to consider
the applicant's case.  The PEB found the applicant's chronic left shoulder
pain condition was 20 percent (%) disabling.  It determined that his other
two diagnosed conditions were not separately unfitting.  The PEB found no
distinct correlation between the applicant's shoulder condition, and the
onset of low back pain or left knee pain, and it concluded that these
conditions were not impacting his performance. The PEB found the
applicant's shoulder condition rendered him physically unfit for further
service, and it recommended his separation by reason of disability with
severance pay.

4.  On 3 June 2005, the applicant nonconcurred with the PEB findings, but
waived his right to a formal hearing, and he submitted a written appeal.

5.  The applicant failed to provide the final PEB approval, or documents
related to the denial of his appeal that would have been provided by the
PEB, and the United States Army Physical Disability Agency (USAPDA), and
these documents were not included in the records provided to the Board.
However, there is a properly constituted separation document (DD Form 214)
on file that confirms the authority and reason for the applicant's
separation.
6.  The DD Form 214 issued to the applicant on 21 June 2005, the date of
his separation, shows he was honorably separated in the rank of SPC after
completing 2 years, 5 months, and 4 days of active military service.  It
also confirms he was separated under the provisions of Army Regulation 635-
40, by reason of disability with severance pay.

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.

8.  Paragraph 3-5 of the PDES regulation 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.
Any non-ratable defects or conditions will be listed on the PEB
proceedings, but will be annotated as non-ratable.

9.  Title 38, United States Code, sections 1110 and 1131, permits the
Department of Veterans Affairs (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.  The VA can
evaluate a veteran throughout his lifetime, adjusting the percentage of
disability based upon that agency's examinations and findings.  However,
these changes do 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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his diagnosed low back pain and left
knee pain conditions should have been ratable disabilities during the PEB
process was carefully considered.  However, there is insufficient evidence
to support this claim.

2.  By regulation, 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.  Any non-
ratable defects or conditions will be listed on the PEB proceedings, but
will be annotated as non-ratable.  In this case, the PEB noted the two
diagnosed conditions in question and it determined they were not separately
unfitting, and were not impacting his performance.  As a result, it was
concluded that these were
non-ratable conditions.

3.  The evidence of record confirms the applicant was properly processed
through the PDES.  While non-concurring with the PEB's findings on the two
conditions in question, the applicant did not request a formal hearing, and
absent evidence to the contrary, it is presumed that his written appeal was
properly reviewed and considered by the PEB and USAPDA.  Subsequent to
completion of the appellate process, the PEB findings and recommendation
were approved for The Secretary of the Army, and the applicant was
discharged accordingly.

4.  The medical evidence now submitted by the applicant was available to
and reviewed by the PEB during its deliberations.  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 provide any new medical
evidence that would call into question the original decision of the PEB.
As a result, there is an insufficient evidentiary basis to support a change
to his disability rating, or to support his medical retirement at this
time.

5.  The applicant is advised that he may seek further evaluation of his
conditions through the VA.  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 Army rates only
conditions that are determined to be physically unfitting for further
military service, thereby compensating the individual for the loss of his
or her military career.

6.  The VA, however, may rate any service connected impairment, thus
compensating for loss of civilian employment.  Further, the VA may 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.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___BJE _  __LJO___  ___RDG_  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.




                                  _____Barbara J. Ellis ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050009289                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/03/28                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2005/06/21                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability with Severance Pay           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  177  |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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