MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            17 August 2000    
	DOCKET NUMBER:   AR2000039163

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Linda D. Simmons		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, permanent disability retirement from the Army.

APPLICANT STATES:  In effect, following removal of his thyroid due to cancer his name was placed on the temporary disability retired list (TDRL) and he received disability compensation which ultimately was decreased from 100 percent to zero.  He notes that he continued to receive treatment for his thyroid and in 1999 the VA granted him a 10 percent disability rating.  He states that officials at the VA told him he should have been receiving "a 10 percent disability rating from the Army all along."

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

He entered active duty in February 1967 and on 2 February 1969 his name was placed on the TDRL.  He continued on the TDRL until 31 May 1973 when his name was removed after it was determined by a Physical Evaluation Board (PEB) that the applicant was "now 5 years post-definitive treatment of papillary carcinoma, with no recurrence, and is therefore considered fit for duty."  He was given the opportunity to reenlist in the Army Reserve but declined to do so.

In 1999, subsequent to his removal from the TDRL, the VA "found [the applicant's] postoperative residuals thyroid cancer which is currently evaluated at less than 10 percent disabling is increased to 10 percent effective December 
21, 1997."

Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty, or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

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.

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 38, United States Code, sections 310 and 331, permits the VA to award 
compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  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.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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 evidence indicates that in 1973 the applicant was determined by the Army to be fit for duty and was offered the opportunity to return to military service.  The applicant declined to do so.  Because he was no longer considered unfit by the Army there was no entitlement to disability separation pay or disability retired pay between the date of his removal from the TDRL and the date the VA commenced compensation in 1999.

2.  The fact that the VA determined in 1999 that the applicant's condition warranted a 10 percent disability rating is not an indication that the Army's 1973 determination of fitness was in error.  The VA, operating under its own policies and regulations, assigns disability ratings as it deems appropriate.  Any rating action by the VA does not compel the Army to modify its rating.

3.  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.

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

___svw__  ___mhm__  ___lds__  DENY APPLICATION

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

INDEX

CASE ID	AR2000039163	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000817	
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.	108.00	
2.		
3.		
4.		
5.		
6.