MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            11 February 1999                  
	DOCKET NUMBER:   AC98-11340
			             AR1999020859

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

	Mr.	Loren G. Harrell		Director	
	Ms.	Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms.	Irene N. Wheelwright		Chairperson	
	Mr.	Van B. Cunningham		Member	
	Ms.	Carol Jo Suiter		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his records be corrected to show that he was retired by reason of physical disability at 100 percent instead of 70 percent as currently reflected.

APPLICANT STATES:  That the Department of Veterans Affairs (VA) has rated his service-connected disabilities at 100 percent and he believes that the Army should have rated his disabilities at the same percentage. 

EVIDENCE OF RECORD:  The applicant's military records show:

On 8 September 1987, he enlisted in the Army for 3 years in the pay grade of 
E-1.  He successfully completed his training as an infantryman.

On 18 August 1989, a Medical Evaluation Board (MEB) convened to determine the applicant’s fitness for retention on active duty.  The MEB diagnosed the applicant has having a schizophreniform disorder, acute, severe, manifested by catatonia, negativism, alternating catatonia with periods of psychomotor excitement, inappropriate effect, bizarre psychomotor behavior including posturing and waxy flexibility.  The MEB also diagnosed him with mechanical low back pain.  The MEB found the applicant to be unfit for further duty under the provisions of 40-501 and they recommended that he be referred to a Physical Evaluation Board (PEB).

On 22 August 1989, the applicant indicated that he did not concur with the recommendation of the MEB and he submitted an appeal to the board’s decision.  In his appeal, he stated that he had no prior history of physiological illness prior to his enlistment and that he had never been hospitalized.  He also requested a change of his military occupational specialty (MOS) and that he be placed on a permanent profile for his lower back pain.

An addendum to the MEB’s evaluation was prepared on 26 October 1989, amending the applicant’s diagnosis, his place of birth and his course while he was in the hospital.   However, the board’s findings and recommendation did not change.  The applicant indicated that he concurred with the MEB’s amended diagnosis, findings and recommendation.

A PEB convened on 6 November 1989 and diagnosed the applicant as having schizophreniform disorder, acute, with catatonia, psychomotor excitement, without delusions or hallucinations; rated as considerable impairment of social and industrial adaptability.  The PEB found him to be physically unfit for further military service in any MOS because of a mental disorder found to be incident to service which is not considered to be sufficiently stabilized for permanent disposition.  The PEB rated his disability at 50 percent and recommended that he be placed on a Temporary Disability Retired List (TDRL) with a reexamination during 1 May 1991.  Accordingly, on 19 December 1989, the applicant was retired by reason of physical disability, under the provisions of Army Regulation 635-40 and he was  placed on the TDRL with a combined disability rating of 70 percent.  He had completed 2 years, 3 months and 12 days of total active service.

The applicant was reevaluated by a PEB on 1 July 1991.  He was diagnosed with schizophrenia, paranoid type, chronic, treated with minimal results, manifested by auditory and visual hallucination, paranoid, suicidal and homicidal ideations.  The PEB determined that his disability had not improved and they recommended that he be retained on the TDRL with a reexamination on 1 August 1992.

On 18 September 1992, the applicant was reevaluated by a PEB and he was found to be unfit for retention on active duty.  The PEB rated his percentage of disability as 70 percent and recommended that he be placed on the Permanent Disability Retired List (PDRL).  The applicant indicated that he did not concur with the PEB’s findings and recommendation and he demanded a formal hearing.

On 19 October 1992, a formal PEB convened and concurred with the findings and recommendation of the informal PEB.  Accordingly, on 7 January 1993, the applicant was removed from the TDRL and placed on the PDRL with a combined disability rating of 70 percent. 

On 31 January 1997, the VA rated the applicant 100 percent service-connection for paranoid schizophrenia and 10 percent service-connection for bilateral facet arthritis of the lumbar spine, L4-5, with sacroiliitis.

Title 38, United States Code, section 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  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 the aforementioned requirement.

2.  The evaluation of the applicant’s disability by the PEB more appropriately describes his condition upon separation than does the evaluation by the VA.

3.  In accordance with Title 38, United States Code, section 310 and 331, the VA awards compensation for a medical condition which was incurred in or aggravated by active military service.  The Army is required to establish the percentage of unfitness for duty at the time of separation.  The applicant was properly evaluated by a PEB and he concurred with the findings and recommendation of that board.

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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___inw__  ___vbc__  ___cjs__  DENY APPLICATION

						Loren G. Harrell
						Director