MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           1 March 2000                  
	DOCKET NUMBER:   AR1999028257

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. John Saputo		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: Reconsideration of his earlier application to correct his records by showing that he was separated from active duty due to medical disability retirement.

APPLICANT STATES: In effect, that the disability ratings furnished by the VA demonstrate that he should have been found eligible for disability retirement.  He submits a VA rating benefits statement showing that in August 1998 he was rated at 60 percent rather than the 30 percent rating the VA afforded him in 1992.  He states that his discharge orders specified that he was to be under orders for 45 days, but that he did not receive them until 3 days prior to the expiration of his term of service (ETS).

COUNSEL CONTENDS: Counsel, in effect, concurs in the applicant's presentation and requests that all reasonable doubt be resolved in the applicant's favor.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case on 2 July 1997 (COPY ATTACHED).

The new VA ratings is, technically, new evidence that requires Board Consideration. It might point to error or injustice in the handling of the applicant’s case. 

The Army Physical Disability Agency (USAPDA) has noted in advisory opinions in similar cases that confusion frequently arises from the fact that the Army and the DVA use different rating systems.  While both use the Veterans Administration Schedule for rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army.  The Army rates only conditions determined to be physically unfitting, because they adversely effect the individuals ability to perform assigned duties, thus compensating the individual for loss of a career.  The DVA, on the other hand, may rate any service-connected impairment, in order to compensate the individual for loss of civilian employability or social functioning.  The USAPDA has also pointed out that military disability ratings are based upon the degree to which a medical condition effects the ability to perform duty and not upon the diagnosis or name 

attached to the condition.  By way of comparison, the VA can and does rate an individual for pain in many instances.  The Army can only rate the same painful condition if it impairs the soldier’s ability to perform assigned tasks. 

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 award of a VA compensation rating does not mandate change of nor demonstrate an inequity in a military disability rating.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

2.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

3.  Additionally, the Army does not base disability ratings upon a diagnosis but upon the degree to which a condition impairs the soldier’s ability to perform duty.  In this case, the applicant’s various problems were not considered by the MEB/PEB because there was no evidence that they were effecting his performance of duty.

4.  No injustice arises from applicant’s receipt of orders 3 days before his ETS.  He was not separated due ETS. 

The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__GDP__  __MMD__  __JS  ___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028257	
SUFFIX		
RECON		
DATE BOARDED	20000301	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.