MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            24 July 2003                   
	DOCKET NUMBER:    AR2003084981

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Yolanda Maldonado		Member	
	Mr. John P. Infante		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:  In effect, that his 30 percent disability rating be increased. 

APPLICANT STATES:  In effect, that his left knee that was originally wounded has become worse.  He states that the altered gait has caused a pinched nerve in his back resulting in sciatic pain his right leg.  In support of his application he submits, a medical examination of his lumbar spine completed at the Santa Rosa Memorial Hospital, Santa Rosa, California, a medical statement from doctor, and copy Department of Veterans Affairs rating decision

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

The applicant was medically retired from the Army on 16 June 1953, after being found medically unfit by a Physical Evaluation Board (PEB).  

On 27 May 1953, a formal PEB convened to evaluate the applicant’s medical condition.  The PEB determined that the applicant was medically unfit for further service, and it recommended he be retired by reason of physical disability with a 40 percent disability rating.  The applicant concurred with the findings and recommendations of the PEB.   

The Army Physical Review Council (APRC) modified the PEB findings to show a combine diagnoses and physical disability rating of 30 percent, which was commensurate with the degree of functional impairment shown by the record in accordance with Department of Veterans Affairs (VA) Code 5255 of the VA Schedule for Rating Disabilities.  On 10 June 1953, the applicant accepted the modified findings of the APRC, which resulted in his permanent retirement from the Army with 30 percent disability rating.  

Paragraph 75, Department of the Army Special Order 116, dated 16 June 1953, authorized the applicant’s REFRAD for the purpose of medical retirement.  This order indicated that the applicant was being retired by reason of physical disability and that his disability was rated at 30 percent.  Accordingly, on 30 June 1953, he was separated in the rank and pay grade of first lieutenant/02 (1LT/02), and was placed on the Retired List in that rank and pay grade.  

Army Regulation 600-450, then in effect, in conjunction with regulations governing medical treatment of soldiers, provided that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and would, if it appeared as though the member is not medically qualified to perform duty or failed to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the parameters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  

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 performing active or inactive (weekend drill) duty.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and it is concluded:

1.  The Board notes the applicant’s contention that his 30 percent disability rating should be increased, based on the deterioration of his physical disabilities that resulted in his being placed on the permanent physical disability Retired List, but finds this claim provides an insufficient evidentiary basis to grant the requested relief.  By law, a PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  

2.  The evidence of record confirms that the applicant was separated by reason of physical disability in accordance with regulatory guidance in effect at the time and that he was properly assigned a disability rating in accordance with the VA Schedule for Rating Disabilities.  The Board takes special note of the fact that the applicant accepted the findings and recommendations of the PEB and APRC at the time of his separation processing.  

3.  The Army decision to medically retire the applicant was based on the determination made at the time that he was medically unfit for further service.  Once retired, the responsibility for evaluating the applicant’s medical condition over time transferred to the VA.  As such, the applicant may wish to contact the VA to determine if a change to his disability rating is appropriate at this time. 

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

_AO__  __YM__  __JI         DENY APPLICATION

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

INDEX

CASE ID	AR2003084981	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.177	108.0000	
2.		
3.		
4.		
5.		
6.