MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            6 May 1999                  
	DOCKET NUMBER:   AC97-09987
				   AR1999023288

	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. Fred N. Eichorn		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Ms. Carol J. Suiter		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 vice disability separation.

APPLICANT STATES:  She received a 20 percent disability rating from the Army at the time of her disability separation in February 1993 but subsequently discovered that she should have been compensated for removal of an ovary in January 1993.  She contends that she is entitled to a 10 percent rating for the ovary which when added to her original 20 percent would raise her rating to 30 percent and thus entitle her to disability retirement.

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

She served several tours of duty with the Army Reserve and Army National Guard between May 1976 and July 1988 when she entered Active Duty as a member of the Active/Guard Reserve (AGR) Program on 10 July 1988.  At the time of her entry on active duty she was serving in pay grade E-7.

The applicant’s service medical records, provided by the VA, are extensive and indicate treatment for a variety of ailments and complaints, primarily associated with back pain following a lifting injury in 1988 and fibromyalgia.  (Fibromyalgia relates to a group of common nonarticular rheumatic disorders characterized by pain, tenderness and stiffness of muscles, areas of tendon insertions, and adjacent soft-tissue structures.  These may be primary and generalized or secondary to another underlying condition or localized and often related to overuse or microtrauma factors.)

In March 1989 she was issued a profile as a result of the fibromyalgia which restricted strenuous physical activity and in March 1990 she was issued a profile for chronic back pain.

In July 1990 a MOS/Medical Retention Board (MMRB) found that the applicant’s medical profiles did not preclude satisfactory performance of duty in a worldwide field environment.

The applicant underwent a back operation (L4-5 laminectomy with intervertebral discectomy) on 15 March 1991.  Although her records do not contain copies of any disability board proceedings an advisory opinion (which the applicant was provided a copy of in October 1998) from the Army’s Physical Disability Agency notes the “applicant underwent an informal Physical Evaluation Board (PEB) on 28 July 1992.”  The informal board granted her a 10 percent rating under the Veterans Administration Code for Rating Disabilities (VASRD) code numbers 5099 and 5003 indicating an analogous rating to degenerative arthritis.  The applicant apparently disagreed with the informal board’s findings and recommendation and requested a formal hearing.  On 16 September 1992 a formal PEB increased her rating under VASRD code numbers 5099 and 5003, to 20 percent and recommended separation with disability severance pay.

Prior to the applicant’s separation in February 1993, but after her disability processing, she underwent an operation to remove her remaining ovary.  In 1972, before she entered the military she had undergone the removal of her left ovary and both tubes.

On 19 February 1993 the applicant was honorably discharged by reason of disability and received more than $16,000.00 in disability severance pay.

Subsequent to her separation the VA granted her a 10 percent disability rating for removal of her right ovary.  As of 1998 it appears the VA had granted her a combined rating of 50 percent.

In the processing of this application an advisory opinion was provided by the Army’s Physical Disability Agency.  The opinion noted that Army Regulation 635-40 states that the anatomical loss of a procreative organ is not ratable and recommended her request be denied.  The applicant was provided a copy and an opportunity to respond to the advisory opinion.  She did not respond.

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, and advisory opinion(s), it is concluded:

1.  Although the applicant may have had her right ovary removed just prior to her separation from the military it did not contribute to her unfitness and as such was not ratable.  The fact that the VA subsequently granted her a service connected disability rating for the loss of her ovary is not a basis to change the Army’s rating.

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 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.

4.  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

__fne___  ___ewl__  __cjs___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-09987/AR1999023288	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990506	
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.