MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 July 2000                   
	DOCKET NUMBER:   AR1999030378

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. James E. Anderholm		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 separation be changed to a medical discharge.  In a second application he requests, in effect, that his DD Form 214, Certificate of Release of Discharge from Active Duty, be corrected to add the statement “Disability resulted from a combat-related injury as defined in 26 USC 104:  Yes.”  

APPLICANT STATES:  That he appeared before a medical evaluation board (MEB) and the VA has awarded him a 40 percent disability rating.  To receive certain veteran’s benefits from the State of Hawaii, the requested statement must be on his DD Form 214.  The State will not recognize “Orders 050-1.”

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

He enlisted in the Regular Army on 21 January 1992.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

In June and August 1998, the applicant was evaluated by an MEB for a complaint of right ankle pain and instability.  He had injured his ankle in August 1994 and was diagnosed as having an ankle sprain and an Achilles strain.  He reinjured his ankle in November 1994.  In November 1995, he underwent an examination under anesthesia and arthroscopy with debridement of anterolateral scar tissue.  The examination revealed him to be stable with a normal tilt and normal anterior drawer testing.  Ankle pain and instability continued into January and May 1996.  The MEB examination revealed diffuse severe tenderness around the right ankle joints, tendons and ligaments.  There was no effusion (the escape of fluid into a joint or tissue).  He was in dorsiflexion to 15 degrees and plantar flexion to 35 degrees.  He was diagnosed with right ankle arthritis, post traumatic; migraine headaches; and sympathetically maintained pain, right ankle. He was referred to a physical evaluation board (PEB).

On 6 January 1999, a PEB found the applicant unfit for duty by reason of an inversion injury to his right ankle with partial tear of a ligament and residuals of chronic pain and mild weakness due to pain which may be sympathetically mediated (alleviated with pain killers).  No evidence of arthritis was revealed by x-ray, MRI or bone scan.  He was rated for pain.  His migraine headaches were considered and found to be not unfitting and therefore not ratable.  He was recommended for separation with a 0 percent disability rating.  The applicant concurred and waived a formal hearing.  Item 10c of the DA Form 199, Physical Evaluation Board (PEB) Proceedings, noted “The disability did not result from a combat related injury as defined in 26 U. S. C. 104.”

On 25 January 1999, a DA Form 18, Revised Physical Evaluation Board (PEB) Proceedings, was prepared making an administrative changed to item 10c.  Item 10c was revised to read “The disability did result from a combat related injury as defined in 26 U. S. C. 104.”

Orders 050-1, Headquarters, Tripler Army Medical Center dated 19 February 1999 amended the applicant’s separation orders, additional instructions (q) to read “Disability resulted from a combat related injury as defined in 26 USC 104:  YES.”

On 6 April 1999, the applicant was discharged for disability with severance pay.  Item 18, Remarks, contains the entry “Disability Severance pay -- $20794.20.”

On 18 June 1999, the VA awarded the applicant a disability rating of 40        percent – traumatic arthritis 20 percent, back strain 10 percent, and tinnitus        10 percent.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty. 

The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

The VASRD provides five ratable conditions for the ankle.  Three of them concern anklyosis (the absence of motion of a joint).  One concerns the malunion of the ball of the ankle or the heel bone.  The fifth concerns excision of the ball of the ankle.

Title 38, U. S. 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. 

Army Regulation 635-5 prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service. It establishes standardized policy for preparing DD Form 214.  The current version, effective 1 July 1981, was in effect at the time the applicant was discharged.  One of the instructions for completing item 18 is to enter the amount of disability severance pay/readjustment pay, if any, and specify the type.  For example:  disability severance pay $____/readjustment pay $____.  The regulation is currently under revision.  The October 1997 draft copy of the regulation does not require any entry for disability severance pay/readjustment pay in this item.

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.  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.

2.  The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved (i. e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level, 

3.  Due to the applicant’s ankle condition, he was determined to be unfit for duty as an infantryman.  However, his condition did not fit any of the unfitting conditions found in the VASRD for ankle conditions.  He did not meet any of the conditions under arthritis because it was determined that there was no evidence of arthritis.  He was not awarded a percentage for pain because his ankle pain was determined to be sympathetically mediated.  Therefore, a 0 percent rating was correct.  

4.  The Board understands the applicant’s desire to obtain State veteran’s benefits.  However, the correction to his DD Form 214 he is asking for is not authorized by regulation. The DA Form 18 dated 25 January 1999 and Orders 050-1 dated 19 February 1999 are official military documents and would be accepted by the Federal government to show that his disability resulted from a combat related injury as defined in 26 U. S. code, 104.  The applicant should provide this Board action to the State and request they accept the DA Form 18 or orders 050-1 dated 19 February 1999 as evidence that his disability did result from a combat related injury.  

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

__jlp___  __mhm___  __jea___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038942	
SUFFIX		
RECON		
DATE BOARDED	20000713	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.02	
2.	100.00	
3.		
4.		
5.		
6.