MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            19 May 1999       
	DOCKET NUMBER:   AC98-10812
				   AR1999017256

	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. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Robert G. Hinkle		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:  In effect, that his name be placed on the Temporary Disability Retired List (TDRL) in lieu of being separated with disability severance pay.

APPLICANT STATES:  In effect, that he was released from active duty by reason of physical disability but received a 0 percent disability rating for his knee pain.  He notes that subsequent to his separation the VA granted him a service connected disability rating of 40 percent and as such he believes his name should have been placed on the TDRL.

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

He entered active duty on 13 October 1981 and performed duties as a tank crewmember at a variety of locations throughout the United States and overseas.

In November 1995 the applicant appeared before a MOS/Medical Retention Board which concluded that his medical profile, resulting from bilateral retropateliar pain, prevented him from performing in his primary military specialty. The board recommended the applicant be referred for disability processing.

Although copies of the applicant’s Medical Evaluation and Physical Evaluation Boards (MEB/PEB) were not in records available to the Board there is evidence which indicates he was undergoing disability processing in December 1996 when a request to retain him beyond his January 1997 scheduled separation date was approved.  The retention document states the applicant was undergoing disability processing for “bilateral retropatellar pain syndrome and depression.”

On 5 June 1997 orders were issued by Headquarters, Fort Riley transferring the applicant to the installation transition point for separation processing.  The orders noted the applicant was being separated by reason of physical disability with a 20 percent disability rating.  On 20 June 1997 the applicant was released from active duty and received more than $46,000.00 in disability severance pay.

Subsequent to his separation the VA granted him a combined disability rating of 40 percent.  His low back pain, bilateral shoulder arthritis, and retropatellar pain syndrome in his left and right knees were all independently rating at 10 percent.  The VA rated his “depression” at 0 percent.

Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty, or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.
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 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 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.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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.  The Board notes that although the applicant requested that his name be placed on the TDRL it is possible that he confused the TDRL with disability retirement and in fact really wanted his records to be corrected to reflect disability retirement.  The TDRL is only utilized when an individual’s medical condition is not sufficiently stable to make a rating decision at the time he is being evaluated by the PEB.  The fact that an individual’s medical conditions may worsen or deteriorate with the passage of time is not a basis to place an individual’s name on the TDRL.

2.  Furthermore, the applicant provides no evidence or documentation with his application to this Board, other than his VA rating, which substantiates his contention that his medical condition was not properly evaluated by the Army at the time of his separation or that it was not sufficiently stable warranting placement on the TDRL.

3.  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 action by the VA does not compel the Army to modify its rating.

4.  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.

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

__jns___  ___rgh__  ___rwa__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-10812/AR1999017256	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990519	
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.