MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           3 February 2000
	DOCKET NUMBER:  AR1999026365

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Margaret K. Patterson		Chairperson	
	Mr. Barbara J. Ellis		Member	
	Mr. Ernest W. Lutz		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 essence, that his disability rating percentage be increased.

APPLICANT STATES:  In essence, that upon being discharged he received a 
20% disability rating for a bilateral ankle and knee condition.  The Department of Veterans Affairs (DVA) determined that he is entitled to 50% service connected disability.  He submits a statement written in his own behalf, a Medical Evaluation Board (MEB) decision, a Physical Evaluation Board (PEB) decision, and a DVA Rating Decision in support of his request. 

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

He had a prior honorable period of service in the Regular Army from 29 January
1991-6 July 1994.  On 7 July 1994, the applicant reenlisted in the RA for 4 years, pay grade E-4 and his current military occupational specialty ( MOS) 63G (Fuel and Electrical Systems Repairer). 

The evidence available shows that in 1992, the applicant injured his right ankle.  In 1994, he injured his left ankle, and as a result of the injuries experienced pain in both ankles.  In 1995, he had Brostrum lateral ligament reconstruction on his right ankle at Darnall Army Community Hospital, Texas.

On 5 June 1996, the applicant was issued a P3 profile for bilateral ankle degenerative joint disease and pain.  His limitations were no running, jumping, or squatting.  He was unable to perform the duties of his MOS because he had to walk with a cane.

On 21 February 1997, a MEB diagnosed the applicant as having left patellar tendonitis, moderate, secondary to moderate Osgood-Schlatter’s (proximal tibial bone fusion defect); left ankle loose body; left ankle post-traumatic degenerative joint disease, mild; left ankle severe instability; contracture, right ankle joint with antalgic (pain avoiding) gait and poor motion; local dystrophy, right Brostrum repair site, mild at this time.  He was found not to meet the criteria for retention and was referred to a PEB. 

On 11 March 1997, a PEB determined that both the applicant’s medical and physical impairments prevented him from reasonably performing the duties required by his grade and MOS and granted him a combined rating of 20%.  Additionally, the PEB recommended separation with severance pay.  He did not concur with the findings and requested a formal hearing with a personal appearance and counsel.  On 20 March 1997, he withdrew his request for a formal hearing and concurred with the findings of the PEB.

On 28 June 1997, the applicant was separated from the service with an honorable discharge under the provisions of chapter 4, Army Regulation 635-40.  He received $18,186.00 disability severance pay.  He had completed a total of 6 years and 
5 months of active military service.

On 13 March 1998, a DVA Rating Decision shows that the DVA determined the applicant was 50% disabled.  He received a 20% disability rating due to his right ankle injury, a 10% disability rating for his left ankle and a 20% disability rating for Osgood Schlatter’s disease, and tendinitis in his left knee, and shins in his left leg.

In connection with this application, the Medical Advisor to this Board, opined (COPY ATTACHED), in essence, “that the DVA compensates all service connected impairments that meet the rating schedule regardless of their effect on the soldier’s career.  The military compensates only those disabilities that terminate a military career. This is determined by application of the guidelines in the Veterans Administration Schedules for Rating Disabilities (VASRD) as they relate to the nature and degree of physical disability of the soldier and the requirements and duties that may reasonably be expected in his primary MOS.  Both are required by law to use the VASRD to assign a rating percentage.  However, DVA ratings have no bearing or effect on Department of Defense disability ratings.”  Additionally, the Medical Advisor to this Board opined “that the rating applied by the PEB in this case was correct, based on the objective medical evidence.  Therefore, there is no reason to change the applicant’s disability rating."

The above advisory opinion was referred to the applicant for comment or rebuttal and he failed to respond.

Title 10, United States Code, Section 1203 then in effect provided that a service member determined to be physically unit to perform the duties of his/her office, rank, grade or rating because of a disability incurred while entitled to basic pay could be separated with severance pay if the disability rating was less than 30 percent.

Title 38, United States Code, section 310 and 331, permits the VA to award compensation for a medical condition that was incurred or aggravated by active military service.

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.  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

2.  The applicant was properly separated in accordance with the regulations then in effect.  

3.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and rated at the time of his discharge.  The applicant's DVA record shows nothing to the contrary nor has the applicant provided any medical probative evidence.

4.  The rating action by the DVA does not necessarily demonstrate any error or injustice in the initial rating.  The fact that the DVA, in its discretion, has awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish a basis for medical retirement for Department of the Army purposes.

5.  An award of a DVA rating does not establish entitlement to medical retirement or separation.  The DVA operates under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the DVA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

6.  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

MKP____  BJE_____  EWL____  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026365	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000203	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19970628	
DISCHARGE AUTHORITY	AR635-40, chapter 4  	
DISCHARGE REASON		
BOARD DECISION	(NC)	
REVIEW AUTHORITY		
ISSUES         1.	145.0000	
2.		
3.		
4.		
5.		
6.