MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           20 July 2000                  
	DOCKET NUMBER:   AR2000037086

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler 		Chairperson	
	Ms. Ann M. Campbell 		Member	
	Mr. Kenneth L. Wright 		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, physical disability retirement.  He requests an increase of the 20 percent disability rating that he received in 1997.   

APPLICANT STATES:  That when he appealed the Physical Evaluation Board (PEB)	decision, he was informed that there was no evidence that he had a back condition.  He then received an MRI of the lumbar spine at Walter Reed Army Medical Center on 25 August 1997 which showed that he had a serious L-4-L-5, L5-S1 condition.  However, that condition was not evaluated by the PEB.  His condition worsened after his discharge as confirmed by an MRI of the lumbar spine at a VA hospital in San Juan, Puerto Rico on 24 February 1999.  Nine months after his discharge he was granted a 100 percent service connected disability rating from the VA. 

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

The applicant was in the Army Reserve from 18 May 1990 to 20 March 1994.  He enlisted in the Regular Army for 4 years on 24 March 1994, completed training, and was assigned to a 2nd Infantry Division unit in Korea.  He returned to the United States and in June 1995 was assigned to an air defense battery at Fort Bliss, Texas, as an administrative specialist.  He attained the rank of E-4 and received two awards of the Army Achievement Medal and an award of the 
Army Good Conduct Medal, among his other awards. 

On 14 July 1997 a Physical Evaluation Board described the applicant’s condition as post traumatic arthritis of the left ankle (status post fracture of dome of talus) and right heel (fracture of posterior portion of calcaneus) (medical board diagnoses 1 and 4).  The PEB stated that the injury occurred on 4 July 1996 and that the applicant continued to complain of pain requiring continued use of crutches despite clinical evidence of healing.  The PEB rated his condition as occasionally incapacitating degenerative arthritis of two major joints, and stated that his physical impairments made him unfit to perform the duties required of his grade and Military Occupational Specialty (MOS).  The PEB recommended that the applicant receive a combined rating of 20 percent and that he be separated with severance pay.  The PEB determined that the conditions listed in the medical board (MEBD) diagnoses 2, 3, 5, and 6 were considered, but found to be not unfitting and therefore not ratable.  The results of the MEBD are not available.

On 22 July 1997 the PEB responded to the applicant’s appeal, stating that he had been properly evaluated, and that board members considered all relevant evidence in his case.  Specific issues that were considered were the severity of his conditions and their effect on his duties as an administrative specialist (MOS 71L10).  The board determined that he had arthritis of his left ankle and right heel, and his rating of 20 percent for those conditions were in accordance with the provisions of the regulation.  The PEB informed him that there was no objective evidence to find that his retropatellar pain syndrome condition was unfitting for an administrative specialist.  The PEB also stated that his medical records were reviewed for indications of pathology to indicate that his low back pain was unfitting, but none was found.  It noted his type D scoliosis, but stated that there were no radiological findings or physical findings to indicate that his back was an unfitting condition.  The PEB also informed him that issues regarding employment after his separation from the Army should be addressed by the VA. 

A 3 September 1997 radiologic examination report shows that the applicant received an MRI of the L-spine without contrast, on 25 August 1997.  That report found that there were no signal abnormalities in the vertebral bodies, disc spaces, or spinal cord.  There was good alignment of the anterior and posterior vertebral body lines.  It found that at the L4-L5 level, there was a minimal broad based disc bulge without neurocanal or neuroforaminal stenosis; and at the      L5-S1 level there was subtle disc protrusion with asymmetry to the left which did not cause neurocanal stenosis, but caused a mild degree of neuroforaminal stenosis on the left.  The disc protrusion did abut the existing nerve roots at that level.  The diagnosis given was a subtle left-sided disc protrusion at L5-S1 which abutted the exiting nerve root and caused mild neuroforaminal stenosis on the left.

The applicant was discharged under the provisions of Army Regulation 635-40 on 14 October 1997.  He had 3 years, 6 months, and 24 days service.  He received disability severance pay of $11,157.60.

An undated medical report (origin unknown) shows that the applicant received an MRI of the lumbar without contrast.  The diagnosis given was that of an L4-L5 disc bulge and an L5-S1 left paracentral disc protrusion touching the left S1 nerve sheath.  An MRI of the applicant’s left knee resulted in a diagnosis of a horizontal oblique linear tear of the posterior horn of the medial meniscus surfacing inferiorly and extending into the proximal medial meniscal body; a medial patellar facet mild articular cartilage thinning; and a minute hypointense foci at lateral femoral condyle and proximal tibia.  An MRI of his right knee resulted in a diagnosis of a tear of the posterior horn of the medial meniscus extending to the articular surface without other associated abnormalities. 

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

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.

Army Regulation 635-40 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.
   
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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

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 discharge with severance pay was proper.  The applicant’s back condition was considered, as indicated in the 22 July 1997 PEB reply to his appeal.  His back condition was not considered unfitting.  The medical documentation that he has provided subsequent to that date is not cause to change this decision.  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.

2.  There is no evidence to show that the applicant has received a disability rating from the VA.  Nonetheless, an award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  

3.  The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  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.

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

___sac__  ___klw___  ___amc__  DENY APPLICATION

		    Karl F. Schneider
		    Deputy Assistant Secretary
    (Army Review Boards)

INDEX

CASE ID	AR2000037086	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000720	
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.  177	108.00	
2.		
3.		
4.		
5.		
6.