MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            3 March 1999    
	DOCKET NUMBER:   AR1999018694

	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. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Gary C. Miller		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, physical disability retirement.  

APPLICANT STATES:  In effect, he states that his disability rating by the Army upon his discharge was erroneous, and he encloses a copy of a VA letter to him to support his claim.

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

The applicant enlisted in the Army on 26 May 1981 and remained on continuous active duty until his discharge in 1990.  He attained the rank of Staff Sergeant.

The applicant was examined by a medical board on 11 July 1990, and his condition was diagnosed as degenerative joint disease of the lumbosacral spine primarily located at the facets of L4-5, L5-S1.  The examining physician stated that the applicant categorically denied any desire to undergo surgical correction of the condition (if available), and that doctor opined that the applicant’s condition would only deteriorate if he continued the activity level currently as described for his military specialty, and therefore the applicant was referred to the physical evaluation board (PEB) for disposition.

The medical board narrative summary of 6 August 1990 indicates that the applicant was initially seen for MEB processing on 3 July.  The applicant had scans, x-rays, physio, and other treatments, all of which were of no significant help.  His complaint was of low back pain, and the applicant stated that he could not sit, walk, twist, or exercise, and that the pain had been present since October of 1989. His past medical history was otherwise insignificant except for a couple of asthma episodes, one in 1984 and one in 1988.  The applicant recalled asthma as a child, but nothing in the interim until the aforementioned two episodes.  The routine physical examination was unremarkable except for the following observations:  There were no carotid bruits.  The lungs were crystal clear.  The deep tendon reflexes were active and equal including both ankle reflexes.  Vibration perception was normal.  Straight leg raising was slightly stiff, with a sigh, at 90 degrees.  He walked, sat, moved, and did bend well.  He could walk on his toes and heels with much histrionics and groaning, with increased low back pain.  The applicant claimed a slight lumbar tenderness, with a grin, to fist percussion.  He flexed to mid-tibia level with groaning and grunting and the complaint of stiffness and pain.  His condition was  diagnosed as degenerative joint disease (osteoarthritis), lumbar spine, with subjective complaints disproportionate to the objective findings; no clinical evidence of surgical intraspinal mischief.  That doctor stated that consistent with the above findings, and in accord with the applicant’s wishes, referral to a PEB was appropriate.     

On 29 August 1990 a PEB found the applicant physically unfit because of chronic low back pain with findings of degenerative arthritis of lumbar spine and recommended the applicant be separated with a 10 percent disability rating.
On 31 August 1990 the applicant concurred in the findings and recommendation, and waived a formal hearing of his case.  The recommendation was approved and the applicant was discharged on 16 October 1990.  He had 9 years,               4 months, and 21 days of service.  He received severance pay of $30,348.00.    

A copy of a 1992 VA letter to the applicant indicates that the applicant was awarded a 10 percent service connected disability rating for degenerative disc and joint disease, which was increased to 20 percent effective 17 October 1991, and a 10 percent rating for asthma, effective 17 October 1990, for a combined rating of 30 percent. 

Army Regulation 635-40 sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability, and if found unfit, provides for disposition of the soldier.

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 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 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.  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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

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(s), it is concluded:

1.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and rated at the time of his discharge.  A PEB found that the applicant was physically unfit because of his low back pain, recommending that he be discharged with a 10 percent disability rating.  The applicant agreed and waived a formal hearing of his case.

2.  The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities.  His separation with severance pay was in compliance with law and regulation.          

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.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.

5.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, 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.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

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

___rvo__  __ew____  ___gcm__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018694	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990303	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.108.00		
2.		
3.		
4.		
5.		
6.