MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 March 2000     
	DOCKET NUMBER:   AR1999025927

	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.

	MS. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Roger Able		Member	
	Mr. James E. Anderholm		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:  That within one year of her separation from active duty the VA awarded her a 30 percent disability rating.  She notes that she is on medication daily for asthma and that alone entitled her to a 30 percent disability rating.

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

She entered active duty on 4 August 1993 and was promoted to pay grade E-4 on 1 October 1995 in specialty 63B (vehicle mechanic).

In April 1997 she appeared before a Medical Evaluation Board (MEB) which concluded that she suffered from recurrent shoulder instability, right ankle instability and mild asthma, which was not unfitting.  The evaluating physician recommended referral to a Physical Evaluation Board (PEB).  The applicant concurred with the findings and recommendation of the MEB.

On 1 May 1997 an informal PEB concluded that the applicant’s shoulder and ankle conditions prevented satisfactory performance of her duties but that the conditions had not stabilized to the point that a permanent degree of severity could be determined.  The PEB recommended the applicant’s name be placed on the Temporary Disability Retired List (TDRL) with reexamination in October 1998.  The applicant concurred and waived her right to a formal PEB.

The applicant was released from active duty on 26 September 1997 and her name was placed on the TDRL the following day.

According to information provided by the applicant, in March 1998 she was awarded a combined service connected disability rating by the VA of 30 percent. The VA independently rated her bronchial asthma and right ankle condition at 10 percent in addition to a 10 percent rating for “toxic conjunctivitis.”  The VA found her left shoulder condition “0% disabling.”

In October 1998 the applicant’s medical condition was re-evaluated.  The examining physician noted that her “right arm is absolutely normal” and that she continued to experience pain and discomfort in the right ankle.  It was also noted that she “has history of a bronchial asthma and a pulmonary function test on 1/2/98 showed borderline obstructive ventilatory and mild restrictive ventilatory defect.  The patient takes Proventil and Asmacort on a daily basis.”

An informal PEB concluded on 16 February 1999 that the applicant’s shoulder and ankle conditions were “sufficiently stable for final adjudication” and concluded that the chronic pain in her left shoulder and right ankle rendered her “unfit to reasonably perform the duties required by previous grade and military specialty” and recommended removal from the TDRL with a permanent 20 percent rating under the VA Schedule for Rating Disabilities (VASRD) and issuance of disability severance pay.  The applicant’s bronchial condition, which was not considered unfitting at the time of her release from active duty was not considered as part of the final PEB action.

While the applicant initially nonconcurred with the findings and recommendation, on 25 March 1999 she concurred and waived her right to a formal hearing.  The findings and recommendation of the PEB were approved on behalf of the Secretary of the Army on 25 March 1999.

Army Regulation 635-40 states that the VASRD is primarily used as a guide for evaluating disabilities resulting form all types of diseases and injuries encountered as a result of, or incident to, military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonable perform the duties of his office, grade, rank or rating.  Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  Conditions, which do not render a soldier unfit for military service, will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness.

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.  The evidence shows that only the applicant’s shoulder and ankle conditions were unfitting.  Her asthma was not considered unfitting at the time of her release from active duty and as such was not ratable as part of the February 1999 PEB.

2.  Additionally, the Board notes that while the applicant may have received a “combined” VA rating of 30 percent in 1998 her asthma was independently rated at 10 percent while her shoulder condition was “0% disabling.”  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.  The Board also notes that the applicant concurred with the findings and recommendation of the February 1999 PEB in spite of the fact that the VA had granted her the 30 percent combined disability rating in March 1998.

4.  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.

5.  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

__slp___  ___ra___  ___jea__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999025927	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000323	
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.