MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  9 January 2001
	DOCKET NUMBER:  AR2000041448

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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:  That his honorable discharge for disability with severance pay be changed to a medical retirement discharge.

APPLICANT STATES:  Title 38, United States Code (USC), and the Code of Federal Regulations, Title 38, govern military ratings for disabilities.  He asserts that he meets the requirements of Title 10, USC, section 1201, for medical retirement.  As provided by the evidence given and or record, he should have been retired and not discharged.  He provides copies of:

a.  a Veterans Affairs (VA) Rating Decision, dated 22 December 1998, that shows that the VA rated him 30% disabled (10% each for left hip injury, left retropatellar pain syndrome, and right retropatellar pain syndrome).

b.  a VA Compensation and Pension Exam Report, dated 14 April 1999.

c.  a VA Rating Decision, dated 8 February 2000, that shows that the VA increased his disability rating to 70%, adding 40% more for a degenerative joint disease of the lumbar spine.

	d.  his Military Occupational Skill (MOS) Medical Review Board (MMRB), his Line of Duty (LOD) Determination (DA Form 2173), his Medical Evaluation Board (MEB) (DA Form 3947), and his Physical Evaluation Board (PEB) (DA Form 199).

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

That he enlisted in the Regular Army on 24 July 1991.  His MOS was 11B2PF7, Infantryman, Parachutist, Pathfinder.  He rose through the ranks to Sergeant, pay grade E-5, on 1 October 1996.

On 4 March 1996, the applicant was injured at Fort Lewis, Washington, during an improper parachute landing, landing on his weapon.  An investigation determined that the injury was in the line of duty.  The injuries, which were to his left hip and knees, caused frequent pain resulting in the applicant being given, on 
25 February 1998, a permanent profile “P3” for lower extremities.  This profile limited his ability to perform in his MOS.  On 31 March 1998, a MMRB was conducted.  The MMRB concluded that the applicant’s, “limitations imposed by his permanent profile are so prohibitive, they preclude retraining and reclassification into any Primary MOS (PMOS) in which the Army has a requirement.”  The MMRB referred the case to a MEB.

On 10 and 17 June 1998, the applicant was given a medical and orthopedic examination at Madigan Army Medical Center in Tacoma, Washington.  A x-ray of the applicant’s pelvis (hip) showed the pelvis and hip to be normal.  A x-ray of the lumbar spine showed only minimal degenerative disk disease at L2-L3 and 
L3-L4.  Bilateral knee x-rays were normal.  An MRI of the left hip was unremarkable.  A bone scan showed only mild stress reaction of the right tibia and mild activity in the right knee, but no evidence to explain left hip symptoms.

The examining physician reported, “Currently, the service member is disabled enough so that he can no longer perform the duties of an 11B Infantry soldier.  Because of the chronic pain in his left hip, knees and back, he has been re-assigned to a desk position in his Light Infantry Brigade.  He states that he cannot walk without pain and even has trouble sometime arising from bed.”

On 7 October 1998, a MEB at Fort Lewis found that the applicant had the following medical conditions and defects:  (1) snapping left hip, moderately symptomatic; (2) left proximal iliotibial band (tendon like tissue from left hip to left thigh bone) syndrome, moderate symptomatic; (3) mechanical lower back pain; and (4) bilateral retropatellar knee pain syndrome (pain behind both knee caps).  The snapping hip and iliotibial band syndrome are synonymous.  The MEB concluded that, “The service member’s various conditions prevent him from remaining on a world-wide deployable status in the United States Army.  Because of this, the soldier fails to meet retention standards as per paragraph 
3-41e(1),” (Army Regulation 40-501).

Army Regulation 40-501, paragraph 3-41e(1), states that cause for referral to an MEB include miscellaneous conditions and defects not mentioned elsewhere in the chapter, if: “(1) The conditions (individually or in combination) result in interference with satisfactory performance of duty as substantiated by the individual's commander or supervisor; (2) The individual's health or well-being would be compromised if he or she were to remain in the military service; 
(3) In view of the soldier's condition, his or her retention in the military service would prejudice the best interests of the Government.  Questionable cases, including those involving latent impairment will be referred to PEBs.”  The MEB referred the applicant’s case to a PEB.

A PEB was conducted at Fort Lewis on 20 October 1998.  The PEB Board Proceedings, DA Form 199, showed that the MEB diagnoses #1 and #2, the snapping left hip and iliotibial band syndrome, which are synonymous, were determined to be unfitting for military service and rated as moderate with a combined 10% disability rating according the Veterans Affairs Schedule for 

Rating Disabilities (VASRD) code 5314 and 5399.  The conditions listed by the MEB diagnoses #2 and #3, mechanical lower back pain and bilateral retropatellar knee pain syndrome, were found by the PEB to not be unfitting for military service and therefore not ratable.  Since the applicant had a combined rating of 10%, which is less than 30%, and having less that 20 years of service, Army Regulation 635-40, requires separation from the service with severance pay.  
The applicant was afforded an opportunity to review the PEB decision.  On 
23 October 1998, the applicant signed the DA Form 199 indicating that he concurred with the PEB decision and waived a formal hearing of his case.

The Army Physical Disability Agency (PDA) reviewed the PEB decision on 
27 October 1998 and found it to be correct and accurate.  Accordingly, the applicant was honorably discharged on 17 December 1998 for disability, with severance pay.  The applicant was discharged with 7 years, 4 months, and 
17 days creditable service.

On 22 December 1998, the applicant’s disabilities were rated by the VA.  The VA rated the snapping left hip and iliotibial band syndrome as a moderate disability with a 10% disability rating, the same as the Army had determined.  The VA granted 10% disability rating for each knee for the bilateral retropatellar knee pain syndrome.  The VA did not rate the mechanical back pain at that time.

On 8 February 2000, the VA rendered an updated rating decision adding a 
40% disability rating for the applicant’s lower back pain (degenerative joint disease of the lumbar spine) for a combined VA disability rating of 70%.

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 civilian 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.  The difference between the Army and VA ratings is sometimes confusing to the veteran.  While both use the Veterans Affairs Schedule for Rating Disabilities (VASRD), Code of Federal Regulations, Title 38, Part 4, not 

all of the general policy provisions set forth in the VASRD apply to the Army.  The Army rates only conditions determined to be physically unfitting for military service at the time of discharge, thus compensating the individual for loss of a career.  The VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability as required based upon VA examinations and findings.

Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), table 4-2, rule 13, shows that a Regular Army soldier with less than 30% disability and less than 20 years service, will be separated from the service with severance pay according to Title 10, USC, section 1203.  A soldier with 30% or more disability is separated under section 1201 of Title 10.

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 was properly and justly discharged for disability with severance pay under table 4-2, rule 13; Title 10, USC, section 1201; Army Regulation 635-40.  Since the applicant had less then 30% disability at the time of separation, he was not eligible for retirement under Title 10, USC, section 1203.

2.  The PEB combined disability rating of 10% due to unfitness for military duty was correct at the time of discharge according to the VASRD (Code of Federal Regulations, Title 38, Part 4) and Army Regulation 40-501.

3.  Award of a higher disability rating by the VA does not establish error or injustice in the Army disability rating of the applicant at the time of his discharge. The Army rates only conditions determined to be physically unfitting for military service at the time of discharge, thus compensating the individual for loss of a career.  The Army found only the snapping left hip and iliotibial band syndrome, which are synonymous, to be unfitting for military service, rating the disabilities as moderate with a combined 10% disability rating according the VASRD.  The PEB did not find the mechanical lower back pain and bilateral retropatellar knee pain syndrome unfitting for military service at the time of discharge.  The VA may rate any service connected impairment, including those that are detected after discharge or change after discharge, in order to compensate the individual for loss of civilian employability.  The VA determined that the mechanical lower back pain and bilateral retropatellar knee pain syndrome were disabilities, in addition 

to the snapping left hip and iliotibial band syndrome, which impacted the civilian employability of the applicant.  The VA’s rating, however, does not apply to the applicant’s physical unfitness for military duty.

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

__mm___  __ea___  ___cg__  DENY APPLICATION

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

INDEX

CASE ID	AR2000041448	
SUFFIX		
RECON		
DATE BOARDED	20010109	
TYPE OF DISCHARGE	HD Disability	
DATE OF DISCHARGE	19981217	
DISCHARGE AUTHORITY	AR 40-501	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.108	Disability Separation	
2.		
3.		
4.		
5.		
6.