MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 June 2000                  
	DOCKET NUMBER:    AR2000034989

	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	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Orville W. Troesch, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Margaret V. Thompson		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 10 percent disability rating for chronic back pain be corrected to a 30 percent rating, with the additional 20 percent disability ratings being given for depression associated with chronic pain, tinnitus, and varicose veins.

APPLICANT STATES:  That Army Regulations, Department of Defense Directives, and Federal Statutes require the Physical Evaluation Board (PEB) to consider a soldier’s entire physical condition when assigning a disability rating.  If his whole physical condition had been considered, he would have be awarded a 40 percent disability rating.

In support of his application he submits a DVA decisional document in which he is rated for depression, tinnitus and varicose veins for a combined rating of 40 percent disabled.

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

He entered on extended active duty as a Guardsman in a commissioned status on 5 November 1979 with 3 years, 9 months and 22 days of prior active service and 7 years, 5 months and 13 days of prior USAR/ARNG service not on extended active duty.

On 26 April 1992 the applicant was the subject of a physical evaluation in preparation for a Medical Evaluation Board (MEB) and PEB.  In the physician’s narrative summary it was outlined how the applicant, while a Special Forces major, began having complaints of lower back pain as well as right groin and right lower extremity pain after a hard parachute landing in 1987.  Conservative management of his condition resulted in the resolution of his pain.  However, approximately 3 months after a parachute jump in January 1988 he developed marked pain noted while sitting and standing and was diagnosed as having L4 spondylolysis with grade I spondylolisthesis.  When conservative therapy failed to provide any lasting relief, the applicant underwent fusion of his L4 – L5 discs.  This operation resolved his groin and lower extremity pain, but not his lower back pain.  The applicant was given a permanent physical profile and was reclassified into another branch by an MOS Medical Retention Board (MMRB).  

On 10 June 1992 an MEB was convened and determined that the applicant was medically disqualified due to chronic low back pain as a result of his spinal fusion and instrumentation, and due to early cervical osteoarthritis.

On 5 August 1992 a PEB was convened and determined that the applicant was physically unfit due to low back pain without neuropathy as a result of disc fusion and instrumentation, with essentially normal motion.  The PEB determined that his condition was 10 percent disabling under the Veterans Administration Schedule for Rating Disabilities (VASRD) and recommended that he be discharged with severance pay.  The applicant concurred with those findings and recommendation and waived a formal hearing of his case.

Accordingly, on 23 December 1992 the applicant, then a lieutenant colonel, was honorably discharged due to physical disability, rated 10 percent disabled, with $107,323.20 in severance pay.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  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.    In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career. 

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 10, United States Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

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

1.  The applicant’s MMRB’s, MEB and PEB all show that he was medically disqualified and physically unfit to perform his duties due solely to lower back pain.  While depression, tinnitus and varicose veins are all noted in his medical records, there is no indication that they were medically disqualifying or physically unfitting.  The pain in his lower back, while standing or sitting, was the unfitting condition. 

2.  While the applicant’s desire to be medically retired is understandable, his records do not indicate any error or injustice in his case.  It is noted that he concurred with his discharge with severance pay and waived a formal hearing of his case.

3.  The fact that the DVA rated the applicant for depression, tinnitus and varicose veins is not germane to his case.  The DVA is not limited to rating those conditions which terminate a soldier’s career.

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

___owt__  __kan ___  ___mvt __  DENY APPLICATION

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

INDEX

CASE ID	AR2000034989	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
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.	108.05	
2.		
3.		
4.		
5.		
6.