MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            25 February 1999
	DOCKET NUMBER:   AC97-06041
   AR1998002429

	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. Gale Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Mr. Samuel Calderon		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 her records be corrected by increasing her physical disability rating to 30 percent; by reclassifying her separation as a  
Medical retirement; and by placing her on the Retired Disability List.

APPLICANT STATES:  That many of her medical conditions were ignored or underrated by her medical separation board; and that she received a 70 percent disability rating from the Department of Veterans Affairs VA). 

COUNSEL CONTENDS:  Counsel makes no contention.

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

On 6 January 1982, she enlisted in the Regular Army and had continued through reenlistments until her separation.  She completed her required training and was awarded military occupational specialty (MOS) 71L (Administrative Specialist).  She was promoted to E-6 on 1 June 1991.

On 16 March 1993, a Medical Evaluation Board (MEB) diagnosed the applicant with fibromyalgia, chronic abdominal and pelvic pain, retropatellar pain syndrome, and chronic musculoskeletal back pain, with the chief complaint being chronic abdominal pain and fibromyalgia.  

On 7 May 1993, a formal Physical Evaluation Board (PEB) found that the applicant’s fibromyalgia and chronic abdominal and pelvic pain rendered her unfit to reasonably perform the preponderance of the requirements of her rank and MOS.  The PEB, therefore, recommended that she be separated with severance pay, with a disability rating of 20 percent.

On 3 November 1993, the applicant was honorably discharged under the provisions of Army Regulation 635-40.  Her Report of Separation indicates she had 11 years, 9 months and 28 days of creditable service. 

On 9 February 1995, the (VA) granted the applicant’s claim for service-connected disability compensation, with a combined evaluation of 70 percent.  

On 6 May 1998, the Commander, U.S. Army Physical Disability Agency
(USAPDA) provided an opinion (COPY ATTACHED) which recommends that the applicant’s request be denied, stating that the applicant did not present any additional positive medical evidence of error by the PEB, and that the PEB’s findings and recommendations were supported by substantial evidence, were not arbitrary or capricious, and were not in violation of any law or regulation.  

The applicant was given an opportunity to comment or rebut the advisory opinion provided by USAPDA, but no response was received.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Title 38, United States Code, sections 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, is not required by law to determine medical unfitness for further military service.  The VA, is 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 medically unfitting 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:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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.

2.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

3.  The applicant’s contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of her case by her separation from the service.  

4.  The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating by the VA does not compel the Army to modify its rating.  Furthermore, the VA can evaluate a veteran throughout her lifetime, adjusting the percentage of disability based upon that agencies examinations and findings.

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

___jma__  ___jlp__  ___sc_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-06041/AR1998002429	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990225	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 108.02		
2.		
3.		
4.		
5.		
6.