MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 February 2000                  
	DOCKET NUMBER:   AR1999025916

	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. Edmund P. Mercanti		                         Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Elizabeth Buchannon		Member	
	Mr. Raymond J. Wagner		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:  That the reason for separation listed on his DD Form 214 be corrected from placement on the Temporary Disability Retired List (TDRL) to placement on the Permanent Disability Retired List (PDRL).

APPLICANT STATES:  That he was placed on the TDRL in 1992 and in 1993 was told he could not return to active duty and was permanently retired.  He is now rated 50 percent disabled (permanent) so it is obvious a mistake was made on his DD Form 214.

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

He enlisted in the Regular Army on 23 May 1989, was awarded the military occupational specialty of food service specialist, and was promoted to pay grade E-4.  On 10 March 1992 he was discharged and placed on the TDRL, rated 100 percent disabled.

On 19 July 1993, while the applicant was assigned to the TDRL, he was considered by a second Physical Evaluation Board (PEB).  That PEB determined that he was physically unfit due to pain in his left leg which was a residual of his resected tibiat adamantinoma which he underwent in June 1991.  The PEB recommended that he be discharged with severance pay, rated 10 percent disabled.  The applicant initially nonconcurred with that finding and recommendation and demanded a formal hearing, but later withdrew that request.

Accordingly, on 24 September 1993 the applicant was discharged from the TDRL.

Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating. 

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant’s placement on the TDRL was obviously appropriate, in view of the fact that his medical condition improved from 100 to 10 percent disabling.  His subsequent discharge from the TDRL was also appropriate since his condition had improved and stabilized.

2.  It appears that the applicant may have been awarded a 50 percent disability rating by the VA.  This does not in any way indicate the rating awarded by the Army was in error.  The Army only rates the condition(s) which terminated a soldier’s career where the VA rates all conditions which are socially or industrially impairing.  

3.  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

_rvo ____  _eb_____  _rjw_____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999025916	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000223	
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.	108.04	
2.		
3.		
4.		
5.		
6.