MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

BOARD DATE:           8 June 2000                  
DOCKET NUMBER:   AR2000039623

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		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: Reconsideration of his application to correct his records by awarding him physical disability retirement.

APPLICANT STATES:  In effect, that he should have received physical disability retirement not an honorable discharge at ETS.  He avers that the Department of Veterans Affairs (DVA) records show that he was suffering from several medical conditions that should have resulted in his being medically retired.  He also contends that there is conflicting information to indicate that, although his discharge physical found him fit for duty, his discharge orders indicate that he did not meet physical standards and was to be discharged for this reason.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in memoranda prepared to reflect the Board's considerations of his case on 2 April 1986 and 2 November 1988 (COPIES ATTACHED).

The applicant submits a partial copy of a 1997 DVA rating decision showing an 80% service connected disability rating.  He was rated for PTSD at 70%, hearing loss at 40% and hepatitis at 0%.  This decision also shows receipt of a non-service connected ratings for schizophrenia (historical), heart disease, chest pain, a skin condition, defective vision and residuals of foot surgery.  He was granted a total disability evaluation due to individual unemployability.  

The applicant submits a 1994 audiometric examination showing marked bilateral hearing loss. 

Additionally, the applicant submits the last page of multiple page document listing administrative and other pertinent information relating to effective dates of discharge, reason for discharge, character of discharge and special information for two individuals.  The applicant’s name and identifying information are shown on this page.  However, the notation “Not meeting medical fitness standards at the time of enlistment”, that appears above the applicant’s data, applies to a soldier who would be named on the preceding page. 

These documents were not available to the Board previously and constitute new evidence that requires Board review.

Army Regulation 635-40 provides that when a soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his rank or grade until the soldier is scheduled for separation, creates a presumption that the soldier is fit.

The Army Physical Disability Agency (USAPDA) has noted in advisory opinions in similar cases that confusion frequently arises from the fact that the Army and the DVA use different rating systems.  While both use the Veterans Administration Schedule for Rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army.  The Army rates only conditions determined to adversely effect the individual’s ability to perform assigned duties.  Physical disability separation pay or retirement compensates the individual for loss of a career.  The DVA, on the other hand, may rate any service-connected impairment, in order to compensate the individual for loss of civilian employability or social functioning.  The USAPDA has also pointed out that military disability ratings are based upon the degree to which a medical condition effects the ability to perform duty and not upon the diagnosis or name attached to the condition.  By way of comparison, the DVA can and does rate an individual simply for the existence of a diagnosis or condition.  An example is a compensable rating for pain. The Army could rate the same painful condition only if it impaired the soldier’s ability to perform assigned tasks. 

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 award of a DVA compensation rating does not mandate change of, nor demonstrate an inequity in a military disability rating.  The DVA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The DVA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.  Furthermore, the DVA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

2.  The fact that the DVA, 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 Department of the Army purposes.

3.  Additionally, the Army does not base disability ratings upon a diagnosis but upon the degree to which a condition impairs the soldier’s ability to perform duty.  In this case, the DVA action and medical reports occurring years after the fact does not demonstrate that the applicant’s disability was rated incorrectly at the time of separation.

4.  The applicant’s discharge orders do not show that he was discharged for not meeting medical fitness standards.  The paragraph above the applicant’s name does not pertain to the applicant but to someone whose entry would have started on the preceding page.

5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__SLP __  __LEM__  ___AAO__ DENY APPLICATION

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

INDEX

CASE ID	AR2000039623	
SUFFIX		
RECON	 	
DATE BOARDED	20000608 	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.	108.01	
3.	108.02	
4.		
5.		
6.