MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            23 February 2000                 
	DOCKET NUMBER:    AR1999029098

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor 		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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, that the reason for her discharge be changed to medically retired.  

APPLICANT STATES:  In effect, that the Physical Evaluation Board (PEB) that rendered the medical findings which were the basis for her discharge was unfair. Her contention is based on the PEB not recognizing all of her significant medical conditions and their true degree of disability at the time of their review and consideration.  She claims that within a month of her discharge she filed for service connected disability from the VA and was granted an overall disability rating of 60 percent based on the following service connected conditions:  depressive disorder, secondary to chronic pain (migraines and stress); kyohotic deformity of cervical spine (neck and pack pain); and vaccination scar.  She comments that the discrepancy between the Army findings and the VA findings reflects an injustice that should be corrected in terms of medical conditions recognized and disability percentage granted by the Army.  

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

She entered the Regular Army on 9 November 1988 and served continuously until discharged, in the rank of staff sergeant/E-6, on 21 October 1997.  She held the military occupational specialty (MOS) of 88M and performed duties as a Motor Transport Operator.

The medical evidence of record shows that applicant was injured in an automobile accident in October 1994, which resulted in her suffering from neck and back pains.  She was medically treated through January 1995 and did well.  However, her symptoms returned as a result of her wearing a kevlar helmet for extended period of time during training in April 1995; however, she again responded well to treatment.  While she was attending the basic noncommissioned officer basic course (BNCOC) in August 1995, she again began to experience neck and back pains after prolonged kevlar use.  Her symptoms did not respond well to treatment and on 29 January 1996, she was given a permanent physical profile of 3L, which was validated in April 1996.

On 25 April 1996, an MOS/Medical Retention Board (MMRB) was convened to determine the applicant’s ability to perform the duties of her MOS, in a worldwide environment, based on the physical limitations imposed by her profile.  The MMRB found that she was not working in her MOS, that her unit commander believed that she could not perform her duties in a worldwide environment, and that her medical condition did not seem to be correctable.  As a result of these findings the MMRB recommended that she be referred to a medical evaluation board (MEB) for a final determination. 

On 17 March 1997, the applicant was evaluated by a MEB, at which time she was diagnosed with chronic neck, mechanical origin, chronic low back pain, mechanical origin, and muscle tension headaches.  The MEB determined that she should be referred to the PEB for evaluation.  The applicant concurred with the findings and recommendations of the MEB.  

On 28 March 1997, the applicant’s medical conditions, as diagnosed by the MEB were evaluated by a PEB.  The PEB awarded a 10% disability rating based on the MEB diagnosed conditions of chronic neck and back pain; however, found that the MEB diagnosed condition of muscle tension headaches was not ratable nor unfitting for duty.  After a review of the medical evidence of record, the PEB found that the applicant’s medical condition prevented her from satisfactorily performing duties in her grade and MOS.  The PEB also determined that the proper disposition of her case would be separation with severance pay.  

On 21 April 1997, the applicant concurred with the PEB findings and recommendations and waived her right to a formal hearing of her case.  On 
7 August 1997, the PEB Proceedings were approved for the Secretary of the Army by the U.S. Army Physical Disability Agency.  Accordingly, on 21 October 1997, the applicant was discharged from the Army after completing 8 years, 
11 months, and 13 days of active military service. 

The evidence of record includes a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows that the applicant was discharged under the provisions of Paragraph 4-24b (3), Army Regulation 635-40 and that the narrative reason for her separation was disability-severance pay.  

On 21 December 1999, an advisory opinion, pertaining to the applicant’s case, was prepared by the Medical Advisor of the Army Review Board Agency (ARBA). In this opinion, it was concluded that ratings arrived at by the VA are for service connected, not service incurred or aggravated, impairments, and in no way impact upon the ratings awarded through the Army’s Disability Evaluation System (DES).  Further, it was found that the rating percentage for the applicant’s condition at the time of her separation was correctly applied by the PEB and, given there was no new substantive medical evidence presented, there is no medical reason to change the reason for the applicant’s discharge.

On 31 January 2000, the applicant submitted a rebuttal to the advisory opinion rendered by the ARBA Medical Advisor.  In her rebuttal the applicant contends the following medical conditions were received on active duty: a vaccination in her upper left arm which resulted in pain and disfiguration; stress as a result of her muscle tension headaches that began in service; and finally her back pain and neck condition that rendered her unable to participate in a healthy sex life with her husband and resulted in the termination of her marriage.  

Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a soldier is found unfit because of physical disability, this regulation provides for disposition of the soldier according to applicable laws and regulations.  Paragraph 4-24b (3) provides for the separation of a member by reason of disability-severance pay. 

Title 10 of the United States Code, Section 1203 contains the law in regard to the separation of personnel with severance pay.  It states, upon the determination by the Secretary concerned, that a member is unfit to perform the duties of the member's office, grade, rank, or rating because of physical disability incurred while entitled to basic pay, the member may be separated from the member's armed force, with severance pay.  It further states, in pertinent part, that members separated with a disability rating of less than 30 % and who have not completed 20 years of service credible for retirement, will be separated with severance pay in lieu of retirement.  

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinions, it is concluded:

1.  That Board noted the applicant’s contention that the PEB did not consider all her medical conditions and unfairly awarded her a disability rating of 10%.  However, after carefully examining the evidence of record and the independent evidence submitted by the applicant, the Board found this claim is not substantiated by the facts.  

2.  The applicant’s disability evaluation processing was conducted in accordance with applicable law and regulation and her separation was properly and equitably accomplished.  The applicant accepted the disability rating awarded by the PEB and concurred with the final findings and recommendations of the PEB.  She was properly briefed and was aware of the fact that, by law, her disability would result in separation with severance pay in lieu of medical retirement.  Therefore, the Board found relief was not warranted in this case.

3.  The Board noted the applicant’s claim that the Army’s disability rating should coincide with the rating granted by the VA.  However, the fact that the VA has awarded the applicant a disability rating which is not in consonance with the Army's physically fit rating, but is within the policies of that agency, does not mean that either rating is erroneous.  The VA rating does not establish physical
unfitness, nor the degree thereof, for Department of the Army purposes.  Each department is bound to operate within its own rules, regulations, and policies.

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 failed to submit evidence that would satisfy the aforementioned requirement.

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

__rvo____  __eb____  ___rjw__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029098	
SUFFIX		
RECON		
DATE BOARDED	2000/02/23	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1997/10/21	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	Disability-Severance Pay	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 108	108.0000	
2.		
3.		
4.		
5.		
6.