MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            11 July 2000                  
	DOCKET NUMBER:   AR1999027918

	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. Carl W. S. Chun		Director	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. John Saputo		Member	
	Mr. Roger Able 		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 his permanent disability retirement rating of      60 percent be increased to at least 70 percent.

APPLICANT STATES:  That his disability has gotten progressively worse since being on Temporary Disability Retired List (TDRL) not better and his rate should never have been decreased.

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

On 5 July 1988, he reenlisted in the Regular Army for a period of 4 years.

On 21 February 1992, while on permanent change of station (PCS) leave, the applicant was involved in a car accident causing him to be pinned between the car and a rock wall, breaking both legs.  

On 11 March 1992, a Medical Evaluation Board (MEB), diagnosed the applicant with trauma to both lower extremities resulting in bilateral Gustillo Grade 3A open tibia-fibula fractures, and recommended that he be referred to a Physical Evaluation Board (PEB) for evaluation and disposition.  

On 29 July 1992, the PEB determined that the applicant was physically unfit and recommended a combined disability rating of 70 percent, and that he be placed on the TDRL with reexamination during August 1993.  

The recommendation of the PEB was approved on 24 August 1992, and the applicant was placed on the TDRL effective 6 January 1993.

On 23 September 1993, a PEB determined that the applicant remained unfit and recommended that he be retained on TDRL, with reexamination during February 1995.  The PEB’s recommendation was approved on 28 September 1993.

On 19 July 1995, a PEB determined that the applicant remained unable to return to his duties due to limitations of ambulation, that his condition was stable and his functions had healed, and that he was no longer completely confined to his wheel chair and could ambulate for short distances, limited by pain.  The board recommended a combined disability rating of 60 percent and that he be permanently retired.  On 7 August 1995, the applicant concurred with the findings and recommendation of the PEB, which were approved on 9 August 1995.  

On 25 August 1995, he was permanently retired with a combined disability rating of 60 percent.

Subsequent to his separation, on 28 April 1999, the Veterans Administration (VA) awarded the applicant a combined disability rating of 30 percent for Major Depressive Disorder, and 100 percent for Bilateral Fractures, Tibia and Fibula.   

Army Regulation 635-40, chapter 4, provides that a medical evaluation board will make a decision as to the service member's medical qualification for retention on active duty on the basis of criteria set forth in Army Regulation 40-501, chapter 3. Individuals who are determined by an MEB not to meet retention standards will be referred to a PEB.  Only a PEB, established to evaluate all cases of physical disability equitably for the member and the Government, may determine that an individual is unfit by reason of physical disability and assign a disability rating.

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.  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.  

2.  The applicant has failed to submit evidence that would justify a correction of his military records.  

3.  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.

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

__rjw____  ___js___  ___ra____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999027918	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000711	
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.  108.02		
2.		
3.		
4.		
5.		
6.