MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 August 2000                   
	DOCKET NUMBER:   AR2000037051

	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	
	Mrs. Joyce A. Hughes		Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lapin		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 disability discharge (severance pay) be changed to a medical retirement.

APPLICANT STATES:  In effect, that he was discharged from the Army with a 10% physical disability (right foot condition).  His disability has since been rated 60% for his service connected disability by the Veterans Administration (VA).  He further states that he should have been medically retired.

EVIDENCE OF RECORD:  The applicant's military records show:
 
He enlisted in the Regular Army on 5 July 1978, for a period of 4 years.  He completed the required training and was awarded military occupational specialty (MOS) 62E (heavy construction equipment operator).  His services were continuous through extensions and reenlistments.

On 13 December 1990, the applicant was given a permanent physical profile for sore ankles, sore knees, sore right foot and low back pain.  His profile further stated that he could only do limited physical training, no duty driving, no marching, no running, and no jumping exercises.

On 2 January 1991, the applicant appeared before a Medical Evaluation Board (MEB).  He was diagnosed as having (1) bilateral plantar fasciitis, refractory to conservative treatment, (2) Right hallux rigidus, severe (osteoarthritis), (3) S/P
nasal septum surgery with persisting symptoms and (4) chronic intermittent soft tissue complaints, multiple areas, with no objective findings.  The applicant requested referral to a Physical Evaluation Board (PEB).

On 7 March 1991, an informal PEB found the applicant to be physically unfit to perform the duties of his MOS.  He was diagnosed as having bilateral pes planus (flat feet) with secondary ankle, knee and low lumbar pain.  The PEB’s recommendation was to separate the applicant from the service without disability benefits.  The PEB also concluded that the applicant’s bilateral pes planus (flat feet) existed prior to entering (EPTS) active duty with the Army.  The applicant nonconcurred with the PEB’s findings and recommendation and requested to appear before a formal PEB.

On 23 April 1991, the applicant appeared before a formal PEB.  He was found to be physically unfit due to bilateral pes planus (flat feet) which, EPTS, and aggravated by the service.  He received a 10 percent rating.  The diagnosis recurrent symptomatic low back pain was rated 0 percent.  The applicant concurred with the formal PEB decision.

On 31 May 1991, the applicant was honorably discharged in pay grade E-5 under the provisions of Army Regulation 635-40, for physical disability with severance pay.  He received a 10 percent disability rating.  He completed 12 years, 
10 months and 26 days of creditable active service.

Army Regulations 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  “Physically unfit” is synonymous with “unfit because of physical disability.”

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical conditions which was incurred in or aggravated by active military service.

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.

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.  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 this requirement.

2.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment and evaluations received while in service.

3.  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.

4.  It is noted that disability ratings of less than 30% for soldiers with less than 
20 years of service require that soldiers be separated from the service with severance pay.  The applicant completed 12 years, 10 months and 26 days of 
active service.  Therefore, his discharge was in compliance with Title 10, United States Code, section 1203.

5.  The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating.  The VA makes its own decisions concerning entitlement to disability compensation and rating based on the statutes and regulations which governs it operations.  The VA is not bound by decisions of the Army and likewise, the Army is not bound by VA decisions.  Any rating action
by the VA does not compel the Army to modify its rating.

6.  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

__ew____  __mvt___  __kwl___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037051	
SUFFIX		
RECON		
DATE BOARDED	20000822	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.0000	
2.		
3.		
4.		
5.		
6.