MEMORANDUM OF CONSIDERATION

	IN THE CASE OF 

	BOARD DATE:  20 July 2000
	DOCKET NUMBER:  AR1999028339

	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. Lee Tinsley		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Kenneth L. Wrigt		Member	
	Ms. Ann M. Campbell		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, an increase in his disability rating given at time of separation.

APPLICANT STATES:  That his rating, given by the Physical Evaluation Board (PEB) does not match his permanent profile.  Since his discharge two doctors have refused to sign work releases so that he can work.

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

The applicant entered active duty as a cannon crewmember on 1 November 1995 with 
3 years prior active service.

The available medical records show that his commander requested a “fit for duty” evaluation on 1 June 1997.  The applicant underwent a Medical Evaluation Board (MEB) in August 1998.  The applicant was evaluated by the MEB for a history of: (1) C5-6 hemilaminectomy for herniated nucleus pulposus, with residual sensory alteration; (2) chronic myofascial neck and upper back pain; (3) essential hypertension; (4) history of paroxysmal supraventricular tachycardia; (5) hepatitis C, carrier state and (6) GERD with esophageal erosions.  A physical profile was issued on that date and the applicant was referred to a PEB.  The applicant agreed with the MEB’s findings and recommendations and did not desire to remain on active duty.

On 17 December 1998, applicant underwent a PEB.  The rating disability was listed as chronic myofascial pain, neck and upper back, with initial neck injury in 1990-1991 time frame progressively more symptomatic resulting in hemilaminectomy and foraminectomy in September 1996 (MEB diagnoses 
1 & 2).  The PEB noted that the “predominant symptoms are those of pain causing a reduction in the range of motion of the neck and limiting the use of the shoulders.”  MEB diagnoses 3 through 6 were found not unfitting; therefore they were not rated.  The applicant concurred with the PEB’s findings and waived a formal hearing.

Effective 2 February 1999 the applicant was separated under the authority of Army Regulation (AR) 635-40, paragraph 4-24b (3) with disability severance pay.  He had 
6 years, 3 months and 2 days of creditable active service.

On 16 February 2000, the Army Review Boards Agency Medical Advisor concluded, after a complete and careful review of all available/submitted medical documentation notes, that the ratings arrived at by the PEB were correct and that the rating percentage for the applicant’s condition at the time of his separation was correctly applied by the PEB from the VASRD (Veterans Administration Schedule for Rating Disabilities).  A copy of the advisory opinion was provided to the applicant for rebuttal.

The applicant provided a copy of a Veterans Administration (VA) rating decision dated 2 August 1999 as response to the advisory opinion.  The VA rated the applicant at 60 percent for herniated nucleus pulposis C5-6, P.O. with myofascial pain syndrome, 30 percent for hepatitis C with gastroesophageal reflux disease with esophageal erosions, and 20 percent for hypertension, for a combined rating of 
80 percent.

AR 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  Appendix B of the regulation, Army Application of the VA Schedule for Rating Disabilities, paragraph B-3f, provides that conditions which do not render a soldier unfit for military service will not be considered in determining the compensable disability rating unless the conditions contribute to the finding of unfitness.

Title 10, United States Code, Chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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.

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, it is concluded:

1.  In the absence of medical evidence to the contrary, it is presumed that the applicant’s unfitting condition was properly rated and diagnosed at the time of his discharge.  The applicant has provided no evidence to the contrary.

2.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  The VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  Any rating action by the VA does not compel the Army to modify its rating.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

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 not submitted evidence nor a convincing argument in support of the request.

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

__sc____  __kw___   ___ac___  DENY APPLICATION

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

INDEX

CASE ID	AR1999028339	
SUFFIX		
RECON		
DATE BOARDED	20000720	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  108.02	Percentage of Disability	
2.		
3.		
4.		
5.		
6.