MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            6 September 2001                  
	DOCKET NUMBER:   AR2001053377

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful . 		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 physical disability discharge be changed to a medical retirement.

APPLICANT STATES: That he was found to be 30 percent disabled by the Department of Veterans Affairs (VA) as opposed to 10 percent by the Department of the Army.

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

On 12 February 1985, the applicant enlisted in the Army.

In February 1996, while walking down a hill, he slipped and caught himself causing immediate low back pain (LBP).  He was issued a physical profile, which precluded his running, marching, sit-ups, jumping or carrying a rucksack.  Further, it precluded his participation in the Army Physical Fitness Test.

On 1 June 1996, he was promoted to pay grade E-7.

On 12 November 1997, Medical Evaluation Board (MEBD) Proceedings show a diagnosis of LBP with bulging L5/S1 disc and referred the applicant to a Physical Evaluation Board (PEB).  The applicant concurred.

On 16 January 1998, a PEB found the applicant physically unfit due to LBP with bulging L5/S1 disc with spondylolisthesis L5/S1 and recommended separation with a rating of 10 percent.  The applicant concurred.

On 28 March 1998, he was honorably discharged under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) for disability with severance pay ($55,629.60).  His separation document indicates he had           13 years, 1 month and 17 days of creditable service.  

On 27 November 1998, the VA awarded the applicant a combined disability rating of 30 percent for degenerative arthritis, 10 percent and condition of the skeletal system, 20 percent.  At the same time, he was advised that the VA award is subject to recoupment of the disability severance pay of $55,629.60 at the rate of $96.00 per month, until the full amount was recouped.

On 31 May 2001, the Medical Advisor, Army Review Boards Agency (ARBA) opined that the applicant was properly rated at the time and that there is no medical reason to increase the disability percentage.  Further, the applicant went through the Army disability evaluation system and ultimately accepted its disability findings and rating percentage.

On 1 June 2001, the ARBA opinion was provided to the applicant for his acknowledgement/rebuttal.
In an undated rebuttal, the applicant indicated that he concurred with the MEBD and the PEB, at the time.  The applicant indicates that because of his technical and tactical proficiency and the manner he served the Army, he is entitled to a medical retirement.

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 the said medical condition reduces or impairs the social or industrial adaptability of the individuals 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, and advisory opinion, it is concluded:

1.  The applicant presents insufficient evidence to merit correction of his physical disability discharge to a medical retirement.  He was properly separated for physical disability with severance pay.  The applicant’s medical condition was presented to a PEB with a diagnosis of LBP with bulging L5/S1 disc.  Diagnostic procedures revealed a diffusely bulging disc at the L5/Sq level but no nerve root compression.  There was bilateral spondylolysis with grade I spondylolisthesis and degenerative changes on the left causing impingement on the L5 nerve root. By physical examination, the applicant’s back had full range of motion and he was able to touch his toes.  His heel/toe walk and heel raising were normal.  Straight leg raise to 90 degrees was non-tender.  Muscle strength was 5 out of    5 and intact to light touch.  Deep tendon reflexes (patella and Achilles) were bilaterally equal and there was no atrophy noted.  The applicant was found unfit and appropriately rated by the PEB at 10 percent using VASRD (Veterans Administration Schedule for Rating Disabilities) code analogous to low back pain (5299 – 5295).  The applicant concurred with the informal PEB’s findings and recommendation, and essentially waived any rebuttal or request for a formal hearing whereby additional evidence could have been presented to the PEB.  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.

2.  The evidence in this case does not support his contention that there was an error or injustice in his separation from active duty.  This is supported by the opinion from the ARBA Medical Advisor and medical officials who prepared the separation documentation at the time.

3. The fact that the VA, 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.

4. The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities.  His separation with severance pay was in compliance with law and regulation.

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 this 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

_mhm____  __lls___  __jtm___   DENY APPLICATION

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

INDEX

CASE ID	AR2001053377	
SUFFIX		
RECON		
DATE BOARDED	20010906	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108	
2.		
3.		
4.		
5.		
6.