MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 September 1999                  
	DOCKET NUMBER:    AR1999022630

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Kathleen A. Newman 		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 he be medically retired with pay and benefits, in lieu of being discharged by reason of physical disability with severance pay.  

APPLICANT STATES:  In effect, that he was medically discharged from the Army after 17 years due to a medical board hearing.  He states that several operations were performed on his feet and that one operation left his toes overlapped on one foot.  He contends that he underwent three more surgeries to correct this problem without success (toes overlapped and pain).  He goes on to state that he was put on a P3 profile and during this time he suffered with back and right knee pain.  After eighteen months his battery commander requested a medical board hearing.  He contends that since it was a military hospital that performed all of his surgeries and he was a military soldier with 17 years active duty with an outstanding record, his goal was to retire from the Army.  He believes that he should have been medically retired out of the Army instead of a medical release. He also contends that his rating from the VA is 20% for his foot.  In support of his application, he submits a letter of explanation; a 13 October 1993 request submitted by his commander for an evaluation for Military Occupational Specialty/Medical Retention Board (MMRB); a 24 July 1992 letter from his podiatrist at Fort Sill, Oklahoma; a 22 November 1993 letter with the results of the MMRB and referral to a Medical Evaluation Board (MEB); a
13 October 1993 notification letter of MMRB; an acknowledgement of notification dated 19 October 1993; a l November 1993 summary of MMRB proceedings; a
8 November 1993 MMRB recommendation; DA Forms 3349 (Physical Profile), dated 23 August 1993, 22 February 1993 and 23 July 1992; and a narrative report from his physician at the Briarwood Clinic dated 7 October 1994.  

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

The applicant entered active duty on 3 June 1977 as a cannon crewmember. 

The facts and circumstances surrounding the applicant’s injury/medical condition are not present in the available records.

The applicant was issued a temporary 3 Physical Profile under lower extremities by competent medical authority on 23 July 1992.  On 22 February 1993 he was issued a temporary 3 Physical Profile under lower extremities and was issued a permanent 2 Physical Profile under lower extremities on 29 July 1993.  

On 13 October 1993 the applicant’s commander requested that the applicant be evaluated by a MMRB due to his permanent profile for lower extremities due to chronic foot pain.  The applicant was notified of his pending MMRB and requested to make a personal appearance before the MMRB.  The MMRB was conducted on 26 October 1993 and determined that the applicant’s assignment limitations or medical conditions precluded satisfactory performance in any MOS for which the Army has a requirement in a worldwide field environment.  The MMRB recommended that the applicant’s case be referred to the Army’s physical disability system.  On 12 November 1993 the convening authority approved the findings and recommendations of the MMRB.  On 22 November 1993 the applicant was notified of his pending MEB.         

The applicant’s medical records, Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) proceedings are unavailable for review by this Board.

Fort Sill, Oklahoma, orders 104-070, dated 7 April 1994, indicate the applicant was authorized severance pay in the grade of E-6 for 16 years, 11 months and 17 days and the percentage of disability is 10%. 

The applicant was honorably discharged on 20 May 1994 under the provisions of Army Regulation 635-40, paragraph 4-24b(3), for physical disability with severance pay.  He had 16 years, 11 months and 18 days of total active service.  
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.

An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

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 noted the applicant’s contention that he should have been medically retired instead of discharged by reason of physical disability with severance pay.  However, he has provided no evidence to show that his
10 percent disability rating was unjust or in error.   
   
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.  Any rating action by the VA does not compel the Army to modify its rating.

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation under the provisions of Army Regulation 635-40, for disability with severance pay, was administratively correct and in conformance with applicable regulations.

4.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate considering all of the facts of the case.

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

JMA_____  TSK____  KAN_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022630	
SUFFIX		
RECON		
DATE BOARDED	19990915	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19940520	
DISCHARGE AUTHORITY	AR 635-40 Paragraph 4-24b(3)  	
DISCHARGE REASON	Physical Disability with severance pay	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	136.000	
2.		
3.		
4.		
5.		
6.