MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            9 June 1999                  
	DOCKET NUMBER:   AR1999017134

	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. David E. Weightman		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. James P. Steuve		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 honorable discharge be changed to a medical discharge, for medical retirement.

APPLICANT STATES:  That the Army erroneously gave him a 20 percent disability.  He believes this is in error since the Department of Veterans Affairs (DVA) regional office in San Juan, Puerto Rico gave him a 60 percent rating.  He submits the DVA adjudication taken on 24 May 1996.

COUNSEL CONTENDS:  Counsel concurs in the applicant's presentation and requests that all reasonable doubt be resolved in the applicant's favor.

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

The applicant was enlisted in the Regular Army on 18 August 1987 and served honorably until his discharge on 8 December 1995.

On 27 September 1995 a Physical Evaluation Board determined the applicant physically unfit and recommended a 20 percent rating, and that he be separated with severance pay.  The DVA code (Schedule for Rating Disabilities) was shown as 5293.  The disability description was herniated L4-5 disk, with bulging disks at L3-L4, L5-S1, with lumbar muscle spasm, normal EMG and NCV, manifested by pain with lifting, carrying or physical activity.

The applicant was counseled and concurred with the findings and recommendations of the Physical Evaluation Board and waived a formal hearing.

The applicant’s disability separation was approved and he was honorably discharged effective 8 December 1995.  He received $21,158.40 disability separation pay.

On 24 May 1996 the DVA awarded the applicant a 60 percent disability rating as related to military service, for his back condition.

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, 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 disabilities which were incurred in or aggravated by active military service.

Title 38, United States Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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.

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 applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army.  The rating appears proper, and he has not provided sufficient evidence to show otherwise.

3.  The rating action by the DVA does not necessarily demonstrate any error or injustice in the Army rating.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.

4.  The applicant was rated less than 30 percent disabled and he had less than 20 years of active Federal service, and he was properly discharged with severance pay.

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

eb______  rjw______  jps _____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12505/AR1999017134	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 June 3	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.