MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   AC9808537

	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	
	M		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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:  In effect, that his 10 percent disability separation be changed to a 30 percent disability retirement.  There apparently is also an error in the amount of disability/readjustment pay he received.

APPLICANT STATES:  His 10 percent disability rating for mild symptom cold injury to his feet was incorrect.  He was hospitalized for almost seven weeks.  During the fifth week, there was talk of cutting his feet off.  When he was discharged, he was still on crutches for about 45 days.  Now he is unable to work.  He provides a Department of Veterans’ Affairs Statement of Patient’s Treatment dated 10 February 1997 as evidence.

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

He enlisted in the Regular Army on 10 July 1978.  He completed basic training and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).

His medical records are not available.

His Medical Evaluation Board (MEB) proceedings show that in December 1984, he sustained three days of exposure to cold during a unit exercise.  He was hospitalized for approximately one week after which he was discharged with a diagnosis of Type I cold injury to his feet.  His MEB physical examination disclosed no evidence of any sensory deficit, neurologic deficit or vascular deficit in the feet.  All toes moved and there was no skin lesion of the feet.  On 10 April 1985, the MEB determined the applicant had Type I cold injury of both feet and referred him to a Physical Evaluation Board (PEB).  The applicant concurred with the board’s findings and recommendation.

On 30 April 1985, an informal PEB found the applicant physically unfit by reason of Type I cold injury of both feet and recommended a disability rating of            10 percent and separation from the service with severance pay.

On 10 May 1985, the applicant concurred in the findings and recommendation and waived a formal hearing.

On 3 September 1985, the applicant was honorably discharged in pay grade E-5 under the provisions of AR 635-40, for physical disability with severance pay.  He received a 10 percent disability rating.  He completed 7 years, 1 month and       24 days of creditable active service.  

In the processing of this case, a staff advisory opinion was obtained from the Physical Disability Agency.  The opinion noted that the applicant provided no positive medical evidence that his condition was improperly rated in 1985 and that subsequent changes in his impairments are the responsibility of the VA.  That Agency recommended that the applicant’s records not be changed.

The applicant disagreed with this opinion.

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 opinion, 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’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities based upon the applicant’s condition as determined by his MEB physical examination.  The applicant concurred in both the MEB’s findings and recommendations and the informal PEB’s findings and recommendations.  His separation with severance pay was in compliance with law and regulation.

3.  The applicant provides no evidence that his medical condition at the time of his discharge was other than as noted by the MEB’s examination.  He provides no evidence that the amount of disability/readjustment pay was in error.

4.  The foregoing conclusions are supported by the provided advisory opinion.

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

                       DENY APPLICATION

                  				           Loren G. Harrell
						Director