MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 January 1999                   
	DOCKET NUMBER:   AC98-11275
                                              AR1998014390

	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	
	Mr. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Robert W. Garrett		Member	
	Ms. Deborah S. Jacobs		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 he be granted a medical retirement.

APPLICANT STATES:  That he received an honorable discharge from the Army with a 10 percent disability rating.  The Department of Veteran Affairs (VA) awarded him 50 percent for the same disability (40 percent for his back and 10 percent for his hearing loss).  Therefore, he feels that he should have been medically retired instead of discharged with severance pay.

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

He enlisted in the Army on 24 October 1967 for 3 years.  He successfully completed his initial training and served as a cargo handler (57H).  He was honorably released from active duty on 23 October 1970 and served in the USAR until his honorable discharge on 23 October 1973.  He attained the rank of specialist five.

On 26 November 1974 the applicant again enlisted in the Army, completed training as an air defense artillery crewman (16R), and served in a series of assignments both in the United States and overseas.  He attained the rank of sergeant first class on 30 July 1982.

On 9 June 1986 the applicant received a permanent profile limiting him to no further exposure to noise levels in excess of 85 decibels.  He was required to undergo annual hearing examinations.

On 26 June 1986 the applicant received another permanent profile limiting him to no running greater than 2 miles more frequently than twice per week.  This profile was based upon a diagnoses of a lumbar degenerative disc disease.

On 30 April 1987 the applicant appeared before a Military Occupational Specialty (MOS)/Medical Retention Board.  The board found that the applicant had a medical condition which precluded satisfactory performance in any MOS in a worldwide field environment.  The board recommended the applicant be referred to the physical disability system.

On 2 June 1987 a medical evaluation board (MEB) convened to evaluate the applicant’s medical condition.  It found that the applicant suffered from chronic post-traumatic lumbar degenerative disc disease, L4-5, and from bilateral sensorineural loss.  It further determined that these conditions were incurred while he was entitled to base pay, did not exist prior to military service, and were not permanently aggravated by military service.  The MEB recommended that the applicant be referred to a physical evaluation board (PEB).  The applicant indicated that he did not desire to remain on active duty and concurred with the MEB’s findings and recommendations.

On 24 June 1987 a PEB convened to consider the applicant’s medical condition. It found the chronic low back pain with degenerative disc disease occurred while he was entitled to basic pay, was in the line of duty, and recommended a 10 percent disability rating.  The PEB commented that this condition, supported by medical documentation, was considered sufficient evidence of physical unfitness.  The bilateral senorineural loss was considered by the PEB and found to be neither unfitting nor ratable.  The PEB found the applicant physically unfit and recommended a combined rating of 10 percent and that the applicant should be separated from the service with severance pay, if otherwise qualified.  The applicant concurred with the PEB’s findings and recommendations and waived a formal hearing.  The PEB was approved by the appropriate authority on 1 July 1987.

On 15 July 1987 the Military Personnel Center, Alexandria, Virginia, directed that the applicant be immediately discharged under the provisions of Army Regulation 635-40, paragraph 4-24e(3) with entitlement to severance pay in excess of $40,000, in the grade of E-7, and with a disability rating of 10 percent.

According to a 14 November 1997 letter from the VA, it has made a rating decision in regards to the applicant’s medical conditions, awarding him service connection, evaluated at 50 percent disabling.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Title 10, 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

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.  An award of a 30 percent or higher VA rating does not establish entitlement to medical retirement from the Army.

2.  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.

3.  The Army, on the other hand, must find that a service member is physically unfit to reasonably perform his or her duties and must assign an appropriate disability rating before he or she can be medically retired or separated.

4.  In the applicant’s case, the Army evaluated the applicant’s back condition at only 10 percent and found the applicant’s hearing loss to be neither unfitting nor ratable.  Further, the applicant was given an opportunity to have a formal PEB hearing but opted to waive it

5.  Disability retirement was precluded since the applicant had completed less  than 20 years of service and received a disability rating of less than 30 percent.

6.  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

____X____  ___X_____  ____X____  DENY APPLICATION

						Loren G. Harrell
						Director