MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 July 1999     
	DOCKET NUMBER:   AR1999021751

	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. Charles H. Loundermon		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Curtis L. Greenway		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, disability retirement or that he be allowed to return to active duty to complete sufficient service for non-disability retirement.

APPLICANT STATES:  In effect, that he was separated by reason of disability with a 20 percent disability rating which he contends “was not compensable for someone who had come so close to retirement eligibility.”  He notes that subsequent to his separation the VA granted him a 50 percent disability and can not understand why there is “such a discrepancy in evaluations.”  The applicant states that he was not seen by a diabetic specialist and “consequently [was] diagnosed as insulin dependent” when in fact his “medical condition could be controlled with pills….”  In support of his request he submits a self-authored statement, copies of his VA rating decision, a copy of his DD Form 214 worksheet, and a copy of his separation orders.

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

He served an initial period of active duty between November 1977 and November 1980 and reenlisted on 29 March 1982.  He was promoted to pay grade E-7 in May 1994.  With the exception of a one-year tour of duty as an instructor at an NCO Academy in Korea in 1993 the applicant’s primary area of responsibility since 1989 had been in the recruiting/retention field.

On 8 June 1997 the applicant was discharged by reason of physical disability with a 20 percent Army disability rating.  He received more than $55,000.00 in disability severance pay.  At the time of his separation he had completed 
18 years, 2 months and 10 days of active Federal service.

Subsequent to his separation the VA awarded him a combined service connected disability rating of 50 percent (40 percent for diabetes, 10 percent for tinnitus and 10 percent for depression).

There were no service medical records contained in files available to the Board and the applicant provided no medical evidence that disputed the Army’s disability rating.

Army Regulation 635-40, which establishes the policies and procedures for the separation of soldiers because of disability states that the objectives of the disability system are to maintain an effective and fit military organization with maximum use of available manpower, to provide benefits for eligible soldiers whose military service is terminated because of a service-connected disability and to provide prompt disability processing while ensuring that the rights and interests of the Government and the soldier are protected.  It notes that the overall effects of all disabilities present in a soldier whose physical fitness is under evaluation must be considered.  The effect will be considered both from 

the standpoint of how the disabilities affect the soldier’s performance and the requirements imposed on the Army to maintain and protect him or her during future duty assignments.  A soldier may be unfit because of physical disabilities caused by a single impairment or physical disabilities resulting from the overall effect of two or more impairments even though each of them, alone, would not cause unfitness.  Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence.  Thus, if the preponderance of evidence indicates unfitness, a finding to that effect will be made.  

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.

Army Regulation 635-40 also provides that commanders of medical treatment facilities will appoint a Physical Evaluation Board Liaison Officer who is responsible for counseling soldiers concerning their rights and privileges at each step in the disability evaluation, beginning with the decision of the treating physician to refer the soldier to a Medical Evaluation Board and until final disposition is accomplished.  During the physical evaluation process soldiers are required to concur or nonconcur with conclusion and recommendations concerning their medical conditions and fitness status and provided opportunities to submit information and documents in their behalf.

The VA Schedule for Rating Disabilities (VASRD) provides that moderate diabetes, with moderate insulin or oral hypoglycemic agent dosage and restricted (maintenance) diet; without impairment of health or vigor or limitation of activity will be rated at 20 percent while moderately severe diabetes, requiring large insulin dosage, restricted diet, and careful regulation of activities, i.e., avoidance of strenuous occupational and recreational activities, may be rated at 40 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.  Although the applicant’s service medical records and copies of documents associated with his disability processing were not included in records available to the Board, the presumption of regularity applies.  The applicant's disability, in the absence of evidence to contrary, is presumed to have been properly rated in accordance with the VA Schedule for Rating Disabilities.  His separation with severance pay was in compliance with law and regulation.

2.  The Board notes the applicant would have been involved in his disability processing and would have had the opportunity to raise objections at various stages of the process.  The fact that he was separated with a 20 percent disability rating with more than 18 years of active service and received more than $55,000.00 in separation pay tends to indicate that he likely concurred with the findings and recommendation of the Physical Evaluation Board.  He has submitted no evidence that indicates otherwise.

3.  The Board also notes that contrary to the applicant’s contention the VA rated his diabetes at 40 percent, not 50 percent.  Notwithstanding, however, 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 applicant’s argument that if he can not be medically retired then he should be allowed to return to active duty to complete sufficient service for non-disability retirement is unrealistic.  One can not be fit and unfit at the same time.  If the applicant believes his medical condition is such that he is no longer unfit for military service the Board suggests that he may wish to contact his local recruiter regarding his eligibility for reenlistment.  The Board notes, however, that the applicant did not indicate in his application that he believed his condition was now sufficiently stable to meet medical retention or entrance standards but, based on his VA rating, essentially argued that his condition was in fact worse than previously evaluated by the Army during his disability processing.  As such there is no evidence which would justify returning the applicant to active duty.

5.  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.

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

___chl__  __slp______  __clg___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021751	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990729	
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.