MEMORANDUM OF CONSIDERATION

	IN THE CASE OF.

	BOARD DATE:            6 July 2000       
	DOCKET NUMBER:   AR1999029096

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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:  The VA has rated his disabilities at 40 percent.  In support of his request he submits an extract of his VA rating decision.

COUNSEL CONTENDS:  Counsel offered nothing beyond that already noted by the applicant

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

He entered active duty on 19 April 1990 and performed duties as a dental specialist for the duration of his military service.

On 16 December 1998 a Medical Evaluation Board (MEB) concluded the applicant suffered from chronic bilateral retropatellar pain syndrome, hypertension, and reactive airway disease.  The MEB referred the applicant to a Physical Evaluation Board (PEB).

On 4 January 1999 an informal PEB concluded the applicant’s chronic bilateral retropatellar pain syndrome “prevents reasonable performance of duties required by grade and military specialty.”  His hypertension and reactive airway disease were determined not to be unfitting and were therefore not rated.

The PEB found the applicant unfit and recommended separation with a 20 percent disability rating under the Veterans Administration Schedule for Rating Disabilities (VASRD).  The applicant concurred and waived his right to a formal hearing.  The findings and recommendation of the PEB were approved “for the Secretary of the Army” on 7 January 1999.

On 3 March 1999 the applicant was discharged by reason of disability and received more than $30,000 in disability severance pay.

According to documents provided by the applicant, subsequent to his separation the VA granted him 10 percent disability ratings for asthma, hypertension, and retropatellar pain syndrome for both the right and left knee.  The ratings were effective 4 March 1999.

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.

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 individual’s 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 applicant's disability was properly rated in accordance with the VASRD.  His separation with severance pay was in compliance with the law and regulations.

2.  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.  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 that requirement.

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

___cmf__  ___emw__  ___jpi__  DENY APPLICATION

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

INDEX

CASE ID	AR1999029096	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000706	
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.