PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:            24 March 1999     
	DOCKET NUMBER:   AR1999023441

	I certify that hereinafter is recorded the true and complete record of the proceedings 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. James E. Vick		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Allen L. Raub		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, disability retirement and award of the Purple Heart.  He states that the Army rated his disability at only 20 percent but the VA subsequently rated the same disability at 70 percent.  He also states, in effect, that his injury occurred during combat and as such he should have been awarded the Purple Heart.

3.  Records available to the Board indicate the applicant entered active duty on 15 November 1984.  On 17 February 1991 the applicant’s right “hand was crushed by [the] recoil of [a] howitzer in battle in Saudi Arabia….”  The inpatient treatment record reflects that the applicant was “wounded in action” and ultimately evacuated to Fort Hood, Texas via Germany.  There is no indication, however, that he was ever awarded the Purple Heart as a result of the injury.

4.  A Medical Evaluation Board (MEB), conducted in October 1991, noted the applicant's chief complaint as "nonfunctional right hand for the past eight months.”  The MEB summary indicated the applicant was unable to use his right hand for any function at all, to include activities of daily living and that he had periodic, recurrent pain in the hand.  The final diagnosis was "reflex sympathetic dystrophy of the right upper extremity, specifically forearm, wrist and hand” which was “moderate to severe.”  The MEB referred the applicant to a Physical Evaluation Board (PEB).

5.  On 7 November 1991 an informal PEB concluded that the applicant’s condition was not sufficiently stable for final adjudication and recommended the applicant’s name be placed on the Temporary Disability Retired List (TDRL) “to follow the progress of change.”  The applicant concurred with the findings and recommendation and waived his right to a formal hearing.  On 16 January 1992 the applicant was released from active duty and his name placed on the TDRL.

6.  The applicant’s follow-up evaluation noted “no improvement, but, unlike the normal history of reflex sympathetic dystrophy, has not shown any deterioration to include no atrophy, and no skin changes indicative of chronic reflex sympathetic dystrophy.”  The applicant reported during the evaluation that “he is able to maintain a job but has no use of his right upper extremity.”  The final diagnosis was “diffuse syndrome, right upper extremity, with doubtful reflex sympathetic dystrophy at this point.”  The applicant concurred with the findings and was referred to the PEB.

7.  The informal PEB, convened on 23 November 1993, noted the applicant “continues to be unable to perform his MOS duties due to a disuse of his right upper extremity with no objective findings to support a physiological or anatomical basis for the diagnosis of disuse of the extremity.”  The PEB concluded the applicant was physically unfit for continued service because of “disuse syndrome, right upper extremity, with no changes indicative of reflex sympathetic dystrophy.  Muscle mass in arm and forearm well preserved.  EMG and nerve conduction studies have been normal.”  The board rated his disability at 20 percent and recommended that his name be removed from the TDRL.  The applicant concurred with the informal PEB findings and waived his right to a formal hearing.

8.  The applicant’s name was removed from the TDRL on 10 December 1993.

9.  Subsequent to his separation the VA granted him a 70 percent disability rating for his right hand condition.

10.  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.

11.  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.

12.  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.

CONCLUSIONS:

1.  The evidence confirms the applicant was wounded as a result of hostile action on 17 January 1991 and as such should be awarded the Purple Heart.

2.  The applicant's disability was properly rated and his removal from the TDRL with a 20 percent disability rating was in compliance with law and regulation.

3.  The applicant concurred with findings and recommendations of the MEBs and PEBs and has provided no evidence that those findings and recommendations were in error.
4.  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.

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 indicate that the Army’s rating decision was erroneous or unjust.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by awarding the individual concerned the Purple Heart for injuries sustained as a result of hostile on 17 January 1991 while in Southwest Asia.

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

__jev___  __rwa___  __alr___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999023441	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990324	
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. 107.00		
3.		
4.		
5.		
6.