MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           20 June 2002                   
	DOCKET NUMBER:  AR2002069141

	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. David E. Weightman		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Roger W. Able		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 her disability rating of 20 percent be increased to 30 percent or higher, and that she be medically retired as of 10 September 1996. 

APPLICANT STATES: That she was incorrectly or inappropriately rated by a Physical Evaluation Board (PEB) at Fort Sam Houston, Texas.  She provides copies of the PEB and the Medical Evaluation Board (MEB).  She indicates she had been diagnosed and rated by the Department of Veterans Affairs (DVA) for fibromyalgia in her back, hands, neck, and shoulder.

In addition, she feels that the PEB was incorrect in stating that the carpal tunnel syndrome of her wrists was unfitting because, through surgery, she has been relieved of some pain.  She does have some pain in both hands.

She indicates that being dismissed from the Army was a very bitter and depressing experience.  She joined the Army at the age of 17; she was young and full of energy and gave her best in the service of her country, until accidents and surgeries slowed her down.  Soon after her discharge, her marriage began to fall apart and she was in no mental or emotional condition to deal with both situations at once.  She started the appeal to increase her DVA benefits and reapplication for her Social Security (SSA) benefits.  She is no longer the vibrant and energetic person she was before entering the military, but rather she is relegated to a life of constant suffering, both physical and emotional.

She provided copies of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 24 March 1997, her PEB, dated 9 October 1996, her MEB, dated 20 August 1996, and a Narrative Summary, dated 1 March 1996, 

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

The applicant entered the Army on 5 August 1981 and had continuous active service until her discharge in 1997.  She attained the rank of staff sergeant, pay grade E-6, and received numerous awards, including the Army Commendation Medal, three awards of the Army Achievement Medal, and five awards of the Army Good Conduct Medal.  She completed the basic noncommissioned officer course and was assigned to various locations throughout the world, to include Korea and Alaska. 

The PEB recommended that she receive a disability rating of 20 percent and that she be separated with severance pay. 

On 24 March 1997, she was honorably discharged based on her disability, and received severance pay in the amount of $46,720.80.  Her separation document indicates she had 15 years, 7 months, and 20 days of creditable service.

On 12 December 2000, this Board denied her request for correction of records to reflect an approved early retirement (TERA) rather than a disability separation (AR2000040347).  At that time, she contended that she had not been given an explanation of the 15-year early retirement program, nor afforded the opportunity to apply for it.  It was concluded that she did not meet the eligibility requirements for that program.

Based on a hearing on 29 October 1999, the applicant received a partially favorable decision concerning her application for SSA benefits through 
31 December 2002.  

The applicant has been rated by the DVA with an 80 percent disability.  Her current DVA compensation is partially offset by her separation pay.

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

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Title 38, United States Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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 DVA 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 applicant is not entitled to have her disability rating of 20 percent increased to 30 percent or higher, or that she be medically retired as of 
10 September 1996.  She has not satisfactory shown error or injustice in her case for the relief she is requesting.

2.  The applicant's disability was properly rated and her separation with severance pay was in compliance with law and regulation.  There is no evidence to show otherwise.

3.  The rating by the DVA does not demonstrate any error or injustice in the Army rating.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit, and any rating action by the DVA does not mandate the Army to modify its rating.

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

_rwa____  _jtm____  _rvo____    DENY APPLICATION

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

INDEX

CASE ID	AR2002069141	
SUFFIX		
RECON		
DATE BOARDED	20020620	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	208	
2.		
3.		
4.		
5.		
6.