MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 
	BOARD DATE:                              
	DOCKET NUMBER:  AR1999029382

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Barbara J. Ellis 		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Ernest W. Lutz, 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:  In effect, the applicant requests reinstatement in the Army or physical disability retirement with a 100 percent disability rating.  

APPLICANT STATES:  That his diabetes was severe enough to be discharged with a 20 percent disability rating under a strict diet and oral medication.  He is currently under a strict diet and taking oral medication.  Back injuries were never considered [by the physical evaluation board], but he has a herniated L-4, L-5 disc.  He has a shrapnel injury to his hand, ankle injuries, and he developed spurs on both feet from calcium deposits.  The applicant provides a list of his ailments and injuries that he indicates were incurred during his military service.

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

The applicant entered on active duty on 23 February 1984, and remained on continuous active duty until his discharge in 1996.  He has been assigned to various locations throughout the world, to include Fort Polk, Louisiana, Fort Bragg, North Carolina, Korea, and Fort Sam Houston, Texas.  He completed numerous military courses, to include airborne, rappelling, special forces, air assault, and the advanced NCO course.  He attained the rank of Sergeant First Class and has been awarded the Meritorious Service Medal, two awards of the Army Commendation Medal, four awards of the Army Achievement Medal, three awards of the Army Good Conduct Medal, the Parachutist Badge, the Air Assault Badge, the Special Forces Tab, and the Peruvian Police Parachute Badge, among others. 

On 25 July 1989 the applicant was treated for lower back pain.

On 2 May 1991 the applicant was treated for pain to his right ankle, as a result of striking his right heel on the ground after sliding down a 35 foot rope.

On 4 May 1991 the applicant received x-rays to both his ankles, which were swollen.  He fell off a helicopter.

On 8 December 1991, 7 January and 7 February 1992, the applicant received treatment for a shrapnel wound to his right hand.

On 12 August 1994 the applicant was treated for pain to his lower back, knee, and foot.  He was treated again for pain to his lower back on 17 August 1994,      3 March 1995, 20 March 1995, and 3 August 1995.  

On 31 August 1995 a medical evaluation board (MEB) diagnosed the applicant’s condition as diabetes mellitus, and hypercholesterolemia.  The MEB narrative shows that the applicant was started on oral medication, and that he would need insulin in the future, and would need an oral hypoglycemic, in addition to dietary control, until the time insulin was necessary.  The applicant was still capable of working full time, and other than the period when his sugar was being controlled, he had not missed work because of his illness.  The MEB recommended that he be referred to a physical evaluation board (PEB).  The applicant concurred and stated that he desired to remain on active duty.

On 20 October 1995 a PEB determined that his medical condition prevented his satisfactory performance of duty in his military specialty, found him physically unfit and recommended that he be separated from the Army with severance pay with a rating of 20 percent.

The applicant was discharged on 28 February 1996 at Fort Bragg.  He had        12 years and 8 days of service.  He received disability severance pay of $48,499.20.

A VA rating decision of 15 August 1996 shows that the applicant received a disability rating of 20 percent for diabetes mellitus, 10 percent for tinnitus, and zero percent for scar to his right hand, left and right ankle sprain, and right hearing loss.  The VA determined that his left hearing loss was not service connected, and that his claim for service connection for sinusitis, headaches, lower back pain, back spasms, scoliosis of lower back, left hand/loss of feeling, heat injury, neck spasms, knee problems, and chest pains, was not well grounded.

A VA rating decision of 23 November 1998 shows that the applicant received a service connected disability rating of 10 percent for central disc herniation, L4-L5 lumbar spine. 
 
During the processing of this application an advisory opinion (COPY ATTACHED) was obtained from the Medical Advisor to the Army Review Boards Agency.  That official opined that the applicant had been properly treated for injuries to his ankle without residual complications, and was appropriately treated for the shrapnel wound to his right hand without complications or residual disability.  The PEB recommended a rating of 20 percent for his diabetes mellitus, which is correct.  There was no indication for a MEB for back pain or ankle sprains.  The medical advisor stated that there was no reason to change the applicant’s discharge status.  A copy of the advisory opinion was furnished the applicant for his information and possible rebuttal on 16 December 1999.  He did not respond. 

Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

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 service and a disability rated at less than 30 percent.

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 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.
 
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(s), it is concluded:

1.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and rated at the time of his discharge.  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. The foregoing is supported by the opinion from the Medical Advisor to the Army Review Boards Agency.
          
2.  The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.

3.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

5.  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 with disability severance pay.

6.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

7.  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 the aforementioned requirement.

8.  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

___hof___  ___ewl__  ___bje___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029382	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000330	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.		
3.		
4.		
5.		
6.