MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 July 2000
	DOCKET NUMBER:   AR2000035050

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John H. Kern		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 his records be corrected to show that he was separated due to physical disability retirement rather than with disability severance pay.

APPLICANT STATES:  That he was discharged in October 1999 with disability severance pay, then he received a 70 percent service-connected disability from the Department of Veterans Affairs (VA).  His 70 percent rating from the VA demonstrates that he had a rating at 30 percent or more and he should be permanently retired from the Army.  In support of his request, the applicant submits a copy of his Physical Evaluation Board (PEB) proceedings, his VA disability rating, and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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

As a career Reservist with 2 years prior active service, he was a member of the Active Guard Reserve (AGR) Program and entered active duty on 25 March 1990.

On 2 April 1999, a medical evaluation board (MEB) convened and produced diagnoses of cervical degenerative disk disease (C4-C5,C5-C6), lumbar degenerative disk disease at L3-L4, headaches, gastroesophageal reflux, carpal tunnel syndrome versus thoracic outlet syndrome, bilateral foot pain, right knee retropatellar pain syndrome, lipomas of the back and leg, and pain disorder associated with both psychological factors and a general medical condition.  The MEB recommended that the applicant’s case be considered by a PEB.  The findings and recommendations of the MEB were approved.  The applicant disagreed with the findings and submitted a written appeal.

On 2 June 1999, the applicant’s appeal was considered and the findings of the MEB were amended to remove the 5th diagnosis (carpal tunnel syndrome versus thoracic outlet syndrome).

On 14 June 1999, an informal PEB found the applicant physically unfit  due to chronic cervical and low back pain, with initial back symptoms from lifting weights and a subsequent rear end automobile collision.  The PEB recommended that he be separated with severance pay due to disability rated at 20 percent.  The applicant did not concur and demanded a formal hearing with personal appearance.

A formal PEB was held on 14 July 1999 and found the applicant physically unfit due to chronic low back pain and cervical degenerative disc disease, manifested by chronic neck pain.  The PEB recommended that he be separated with severance pay due to disability rated at 20 percent.  The applicant concurred with the findings and was separated on 7 October 1999 due to physical disability with severance pay.  He received $44,258.40.

Subsequent to discharge, the VA awarded the applicant service-connected disability compensation for C3-7 disc disease with headaches and upper extremity symptoms rated at 40 percent, L3-5 disc disease rated at 20 percent, gastroesphageal reflux disease rated at 10 percent, bilateral pes planus rated at 10 percent, and right patellar tendinitis rated at 10 percent, for a total combined service-connected disability rating of 70 percent.

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 or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

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

Title 38, United States Code, sections 310 and 331, permits the VA to provide treatment and 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, it is concluded:

1.  The medical evidence of record supports the determination that the applicant’s unfitting condition was properly diagnosed and rated at the time of his discharge.  His separation with severance pay was in compliance with law and regulations.

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 Army purposes.

3.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different law and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

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

__tsk___  __sk_____  __jhk____  DENY APPLICATION

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

INDEX

CASE ID	AR2000035050	
SUFFIX		
RECON		
DATE BOARDED	20000725	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.	108.02	
3.		
4.		
5.		
6.