MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            24 March 1999    
	DOCKET NUMBER:   AR1999023474

	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. James E. Vick		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Allen L. Raub		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.

APPLICANT STATES:  His disabilities should have been rated “at least 30% at the time of [his] discharge.”  The applicant indicated that he was not aware of the Board’s existence “until so informed by the MOPH [Military Order of the Purple Heart] National Service Officer” at the VA in Atlanta, Georgia.  He submits no evidence to support his request.

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

He entered active duty on 17 July 1984 and performed duties at a variety of locations, including the Pentagon, Fort Hood, Texas and in Korea.  His performance evaluation reports note he successfully passed his last annual physical fitness test 1990.  There are no documents in available records to indicate the applicant took a physical evaluation test after 1990.

In April 1991 the applicant was a passenger in a car which was involved in an accident.  The applicant, who was on leave at the time, sustained a “closed fracture of vertebrae.”

An October 1991 document indicates the applicant was being removed from “further Class 2S Aeroscout Observe duties” due to seasonal allergic rhinitis, asthma, and because he needed to use an inhaler.

Although attempts to obtain copies of the applicant’s service medical records, Physical Evaluation Board proceedings, and VA records were not successful, other documents indicate that by April 1992 the applicant was being processed for separation through the Army’s disability system.  It is possible that some or all of the foregoing conditions resulted in his unfitness for continued military service.

On 4 September 1992 the applicant was released from active duty by reason of physical disability which was rated at 20 percent.  He received more than $24,000.00 in disability severance pay.

Although the Board can not verify the applicant’s current status it is likely that subsequent to his separation he obtained a VA disability rating which was higher than the 20 percent granted by the Army.

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, it is concluded:

1.  There is no evidence, and the applicant has not provided any, which shows that his disability was not properly rated during the Army’s physical evaluation process.  It appears, in the absence of evidence to the contrary, that his separation with severance pay was in compliance with law and regulation.

2.  If the applicant is basing his request for disability retirement on the fact that he received a higher rating from the VA he should be aware that 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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023474	
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.  		
3.		
4.		
5.		
6.