MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 January 2001                   
	DOCKET NUMBER:   AR2000044167

	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. Nancy Amos		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 medical discharge with severance pay be changed to a medical retirement.

APPLICANT STATES:  That the Physical Evaluation Board (PEB) evaluated his disabilities at 10 percent for mechanical low back pain.  The VA granted him an initial rating of 30 percent and, after appeal, raised it to 70 percent.  He contends that his chest pain of unknown etiology was actually the gastroesophageal reflux currently rated at 30 percent and the hypertension currently rated at 10 percent.
Supporting evidence is as listed on the DD Form 149.

COUNSEL CONTENDS:  Counsel makes no additional contention.

EVIDENCE OF RECORD:  The applicant's military records are not available.  The information contained herein was obtained from his PEB packet.

The applicant enlisted in the Regular Army on 22 November 1983.  He was awarded military occupational specialty (MOS) 36K (Tactical Wire Specialist) and later reclassified into MOS 31U (Signal Support System Specialist).  He was promoted to Sergeant, E-5 on 1 August 1989.

On 7 December 1997, the applicant was given physical profile limitations of no running, no jumping, no lifting greater than 15 pounds, no LBE (load bearing equipment) and no climbing or jumping on/off tactical vehicles for a medical condition of low back pain.

A Medical Evaluation Board (MEB) evaluated the applicant for a chief complaint of low back pain and another condition of chest pain.  On 17 December 1997, the MEB referred him to a PEB for diagnoses of mechanical low back pain and chest pain of an unknown etiology.  On 8 December 1997, the applicant agreed with the board’s findings and recommendation.

On 16 December 1997, a PEB found that, because of his back pain and restrictive profile, the applicant was unable to perform the duties of his MOS.  The PEB found him unfit for duty by reason of mechanical low back pain with a disability rating of 10 percent and recommended his separation with severance pay.  The diagnosis of chest pain was not found to be unfitting and not rated.  On 18 December 1997, the applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

On 1 February 1998, the applicant was discharged by reason of a physical disability.  He had completed 14 years, 2 months and 10 days of creditable active service and received $42,717.60 in severance pay.

On 22 April 2000, the VA awarded the applicant a combined disability rating of  70 percent (gastroesophageal reflux disease 30 percent; degenerative joint disease right and left shoulder 10 percent each; patellofemoral syndrome right and left knee 10 percent each; and hypertension 10 percent).

Army Regulation 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 purposes of his employment on active duty.

The VA Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.   These percentages are applied based on the severity of the condition.

Title 38, U. S. 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.

In the processing of this case an advisory opinion was obtained from the medical advisor to the Army Review Boards Agency.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, 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.  The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved (i. e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level, 

3.  The Board does not dispute the findings that the applicant had chest pain (or knee or shoulder problems or hypertension).  However, it was his back pain that made him unfit for duty.  There is no evidence to show that any of his other conditions rendered him unable to perform duties in his MOS.

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

__mdm___  __clg___  __ena___  DENY APPLICATION

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

INDEX

CASE ID	AR2000044167	
SUFFIX		
RECON		
DATE BOARDED	20010109	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.02	
2.		
3.		
4.		
5.		
6.