MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           16 July 2002                   
	DOCKET NUMBER:   AR2002068709

	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. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Donald P. Hupman, Jr.		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 records be corrected to show that he was retired for a physical disability.

APPLICANT STATES: That he disagrees with the PEB [Physical Evaluation Board] findings that he was only rated at 20 percent.  He indicates the neck and back should have been rated under disability codes 5293 separately with a higher rating and that this is bound by Title 38, CFR (Code of Federal Regulations) when assigning rates of disability pursuant to Title 10, U.S.C. (United States Code).  Hence the PEB has assigned the wrong diagnostic codes for neck and back.  Once this is fixed, it will entitle him to retirement, not disability severance.  He provides copies of his medical records less the Narrative Summary (NARSUM) and Medical Evaluation Board (MEB).

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

During the period 7 September 1982 to 7 August 1986, he served on active duty in the Marine Corps.

On 3 August 1989, he enlisted in the Army.  He completed his required training and was awarded military occupational specialty 31P (Microwave Systems Operator/Maintainer).

On 11 July 1994, he fractured his fibula in an airborne operation.

On 12 June 1998, he sustained a spinal fracture during a parachute landing in Normandy France during a ceremony reenacting the World War II parachute invasion of Normandy.

On 27 March 2000, PEB Proceedings indicates his disability as (1) neck and back pain, VA Codes 5299 and 5295, (MEB diagnosis 1, 2, 3, and NARSUM – not available), rated at 10 percent disabling and (2) left knee pain, VA Codes 5299 and 5003 ((MEB diagnosis 5, and NARSUM – not available), rated at       10 percent disabling.  MEB diagnosis 4 was not unfitting and not rated.  The board found him unfit for further military service and recommended his separation with severance pay at a rate of 20 percent. 

On 31 March 2000, the applicant indicated that he concurred with the boards findings and recommendations and waived a formal hearing of his case. 

On 23 May 2000, he was honorably discharged under Army Regulation 635-40, paragraph 4-24B(3), disability with severance pay.  The amount of severance pay is not a matter of record.  His DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 23 May 2000, indicates he had 14 years,      8 months and 22 days of creditable service.

On 26 October 2000, a VA Rating Decision indicates he was awarded a combined service-connected disability rating of 30 percent for (1) Insomnia as secondary to the spine and left knee condition, 10 percent; (2) Herniated nucleus pilosus at L4-5 with radiculopathy, right lower extremity and L3 compression fracture with residual traumatic arthritis, 10 percent; (3) Left knee condition,       10 percent; (4) Herniated nucleus pilposus, C3-4, with moderate myelomalacia of the spine condition, with headaches and right dominant upper extremity radiculopathy, 10 percent; and, (5) Fracture right fibula, 0 percent.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent disabling.

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, it is concluded:

1.  The evidence in this case does not support his contention that there was an error or injustice in his separation from active duty.

2.  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.

3.  The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities based on reduction or impairment of the individual’s industrial adaptability.  His separation with severance pay was in compliance with law and regulation.

4.  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.

5.  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

_dph____  _fne____  _mhm___ DENY APPLICATION

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

INDEX

CASE ID	AR2002068709	
SUFFIX		
RECON		
DATE BOARDED	20020716	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	136	
2.		
3.		
4.		
5.		
6.