MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            3 December 1998                  
	DOCKET NUMBER:   AC98-05275

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Roger W. Able		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:  Correction of his military records to show he received a medical retirement.  

APPLICANT STATES:  In effect, it is his belief that he was separated simply due to a reduction in force and the appropriate medical discharge procedures were not followed.  He did his job before, during and after being diagnosed as having a seizure disorder. 

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

He enlisted in the Regular Army on 7 April 1987.  He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 19K (M1 Armor Crewman).

In February 1988, the applicant was on a night road march when his tank flipped over and he struck his head on the breech of the main gun.  He had a seizure that night, was air evacuated to the hospital, evaluated and placed on medication.  

He next had a seizure in July 1989 while driving and another one in February 1992.  His next seizure was in March 1993.  

The applicant appeared before an MOS/Medical Retention Board on 5 October 1993.  The board recommended his case be referred to a Medical Evaluation Board (MEB).  He rebutted that recommendation, stating he felt he could still serve his country if he were reclassified into another MOS.  He provided letters of support to show he had been performing his duties in a superb manner.

He stated he had another seizure in November 1993 but it was not documented in his medical records.

On 29 December 1993, the MEB recommended his case be considered by a Physical Evaluation Board (PEB) as he no longer met medical retention standards.  The MEB’s findings were approved on 3 January 1994.  The applicant agreed with the findings and recommendation and checked that he did not desire to continue on active duty.

An informal PEB found the applicant unfit by reason of a seizure disorder and recommended his separation with severance pay at a 10 percent disability rate.

On 12 January 1994, the applicant concurred in the findings and recommendations and waived a formal hearing of his case.

On 31 March 1994, the applicant was discharged, in pay grade E-5, with severance pay and a 10 percent disability rating.  He had completed 6 years,    11 months and 25 days of creditable active service.

The VA rated the applicant at 40 percent disability, later upgraded to 60 percent plus unemployability, for a total of 100 percent.

In the processing of this case, staff advisory opinions were obtained from the Medical Advisor to the Department of the Army Review Board Agency and from the U. S. Army Physical Disability Agency (SEE ATTACHED).  They contain no information, advice or recommendation which would constitute a basis for granting the relief requested.  The applicant rebutted these opinions.

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.

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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinions, 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 applicant was properly evaluated by the Physical Disability System.  His disability was properly rated in accordance with the VA Schedule for Rating Disabilities.  Three months prior to the PEB, he and his commander stated he was well enough to continue with his Army career even though he may have to be reclassified.  This is consistent with the PEB’s finding of a 10 percent disability rating and inconsistent with his now claiming he was so unfit he should have been medically retired.  His separation with severance pay was in compliance with law and regulation.

3. The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating.  The VA, operating under its own policies and regulation and assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.  It is also seen as verification of the MEB and PEB’s findings that he was not qualified for reclassification as his seizure disorder was subject to worsening over time even though at the time of separation it was only ratable at 10 percent.

4.  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

JNS_____  EW______  RWA_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-05275	
SUFFIX		
RECON		
DATE BOARDED	19981203	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	145.00	
2.		
3.		
4.		
5.		
6.