MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           10 June 1999                 
	DOCKET NUMBER:   AR1999018299

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Elzey J. Arledge, Jr.		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, the applicant request that his retirement with a 30 percent physical disability rating in 1984 be increased to a 60 percent disability rating.

APPLICANT STATES:  He states that he was retired with a 30 percent disability rating in 1984, which is inadequate.  He is suffering from bleeding and protruding hemorrhoids, which he did not have prior to the jeep accident.  Every rib in his body was broken, his lungs were punctured and developed fluid.  He could barely breath for weeks after the accident and even now he is short winded.  His dental partials were knocked out and lost a tooth.  He has frequent pains to his right knee and his thigh is consistently stinging or numb.  The accident also affected his sexual functioning.  He is only being compensated for his permanent injuries, which is not adequate.  According to his physical condition, he should receive a 60 percent disability rating.

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

The applicant entered on active duty on 1 May 1950 and was honorably discharged in the rank of Corporal on 2 May 1953.  He served in the Korean War and was awarded the Combat Infantryman Badge, the Korean Service Medal with four bronze service stars, the United Nations Medal, and the Presidential Unit Citation, among other awards.  

He was in the Army Reserve until the completion of his statutory obligation.  He enlisted in the Army National Guard (ARNG) on 24 March 1955.  He served in the DCARNG, and the PAARNG, with breaks in his military service, until              7 December 1974 when he enlisted in the NYARNG, remaining with that organization until his placement on the permanent disability retired list in 1984. 

On 10 September 1980 the commanding officer of his unit, Headquarters and Headquarters Company of the 42nd Supply and Transport Battalion, New York Army National Guard (NYARNG) notified the NYARNG headquarters that the applicant was injured in a jeep accident on 31 July 1980 while on annual training at Fort Drum, New York, sustaining fractured ribs, multiple bruises, etc.

A senior enlisted evaluation report ending in November 1980 indicates that the applicant’s rater determined him to be physically fit for his MOS/grade during combat (giving him a 4 out of a possible 5 rating), as did his indorser, giving him a 5 rating.  His report for the succeeding one year period (ending in November 1982) show that both rater and indorser gave him a 5 rating on physical fitness.
However, on 7 March 1983, in a letter to the NYARNG headquarters, his battalion commander stated that the applicant’s physical profile was 1 P3 1 1 1 1, and that the applicant had been complaining that his responsibilities were beyond his physical condition to meet. 

On 18 February 1981 the National Guard Bureau notified the USPFO for New York that incapacitation pay was not payable (to the applicant) since there was no correlation between the approved line of duty injury for multiple fractured ribs and the medical statement dated 27 January 1981 which stated that the applicant was disabled due to left acromion-clavicular joint and ligament strain.  On            9 March 1981 the request for approval of incapacitation pay was returned for reconsideration.  The NYARNG official returning the request stated that the information on the DA Form 2173 on the original line of duty was incomplete.  The applicant’s injuries included 7 broken ribs, numbness to the right leg between the knee and the hip, bruise to the right rear hip, broken dental plates and lost fillings, dislocated left collarbone, dislocated left shoulder, bruises to small of back and both arms.  He stated that an amended DA Form 2173 was forwarded to the National Guard Bureau in February 1981.

On 31 March 1981 in a letter to the Commander of the Patterson Army Hospital, the applicant’s battalion commander approved the amended DA Form 2173. 

On 29 May 1981 the Physical Evaluation Board Liaison Officer at Patterson Army Hospital at Fort Monmouth, New Jersey, notified the NYARNG that the applicant was found fit for duty with permanent limitations. 

He was promoted to Master Sergeant on 3 July 1981.

On 15 February 1984 he was discharged from the NYARNG and as a Reserve of the Army because he was medically unfit for retention.  

On 13 July 1984 the Army Military Personnel Center (MILPERCEN) notified the applicant that he was placed on the permanent disability retired list with a disability rating of 30 percent.  He was placed on the permanent physical disability retired list in the grade of Master Sergeant on 10 August 1984. 

In a 14 January 1987 response to the applicant’s inquiry, an official of the Physical Disability Branch informed the applicant he could apply to the Army Disability Rating Review Board or to this Board if he believed that his disability rating should have been greater. 

On 3 September 1994 the Army Reserve Personnel Center notified the applicant that he was placed on the AUS retired list in the rank of Master Sergeant effective 11 September 1989.

In a 6 June 1996 rating decision, the VA denied the applicant’s claim for service connected disability for a right knee condition, denied an increased evaluation for a left shoulder condition (evaluated as 20 percent disabling), increased from        10 to 20 percent the evaluation for low back strain, denied an increase evaluation for neuralgia of right thigh (evaluated a zero percent), denied an increased evaluation for residuals of multiple rib fractures (evaluated at zero percent), and stated that there was no new or material evidence submitted to reopen his claim for service connection for hemorrhoids.

The VA rating decision indicated that the applicant had been involved in a motor vehicle accident while on active duty for training in 1980, and at that time and in all subsequent medical records, he did not complain of a knee injury.  Additionally, the VA decision indicated that there were no complaints or treatment for the multiple rib fractures in any of the evidence cited.  The VA exam noted that by history, and the applicant stated he had no current complaints.  The decision also indicated that service connection for hemorrhoids was denied in 1991 and that decision was now final.  His records from 1974 to 1984 did not show a complaint, treatment or diagnosis of hemorrhoids.  Because he alleged that condition occurred while on active duty for training and was caused by his motor vehicle accident, there must be evidence to so indicate.  There was none.

The applicant’s combined service connected disability rating was determined to be 40 percent and he was awarded a new monthly rate of $380.00, minus the $114.00 he was receiving for military retired pay for a monthly payment of $266.00 from the VA, effective 1 February 1996. 

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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.

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 the absence of medical evidence to the contrary, it is presumed that the applicant’s unfitting condition was properly rated and diagnosed the time of his placement on the permanent disability retired list in 1984.  The applicant has provided no evidence to the contrary.

2.  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.  The VA awards ratings because a medical condition is related to service, i.e., service-connected.       Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  Any rating action by the VA does not compel the Army to modify its rating.  The Board notes that the VA, in 1996, denied the applicant’s claim for service connected disability for his right knee, and denied an increased rating for his other conditions, excepting his back condition, which it increased from 10 to 20 percent.    

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

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

___sac___  __slp___  ___eja__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018299	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990610	
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.