MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            6 April 2000                  
	DOCKET NUMBER:   AR1999030410

	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:

	Mr. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		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, physical disability retirement.  

APPLICANT STATES:  That under the provisions of Army Regulation 635-40, [a soldier] with 4 years or more of active duty with a medical problem with more than a 30 percent disability rating, should have received a physical disability retirement. 

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

The applicant enlisted in the Army for four years on 26 June 1991, completed training as a petroleum supply specialist, and airborne training, and was assigned to a unit in Germany.  He remained on continuous active duty until his discharge in 1998. 

On 18 September 1997 a medical evaluation board (MEB) determined that the applicant’s medical condition was unacceptable for further military service.  The MEB indicated that the applicant was referred because of his right arm pain and his inability to perform any duty for over two years.  Additionally, the applicant had a diagnosis of asthma, which limited his activities, and for which he required regular medication.  He required persistent inhalers to perform his job and had been given a permanent profile to do physical training at his own pace and distance.  The MEB narrative indicated that the applicant suffered a splenic rupture and a right humerus fracture resulting from a parachute jump in March of 1995.  He was taken to Israel, where a splenectomy and a humeral rodding was performed.  He was seen by orthopedics at Fort Campbell and after a long period of treatment his humerus was not healed.  The rod was removed and an operation was performed, and it took a full year to heal.  The humerus eventually healed in a nonunion.  The applicant was limited in his activities, could not do push-ups, pull-ups, rope climbing or heavy lifting.  He had pain with repetitive activities.  The pain was located throughout his arm and up into the shoulder.  Associated with the injury was left flank pain, mild in nature, and intermittent since his original injury.  His humerus was evaluated by general surgeons who felt there was no specific treatment.  He had some moderate back discomfort, but no evidence of fracture.  His asthma was a mild to moderate reactive airway disease controlled with inhalers, but appeared to require long term treatment with inhalers.  He has limited ability to perform physical training because of shortness of breath.  The applicant’s condition was diagnosed as right arm pain unresponsive to conservative measures, bone fusion defects; and asthma, chronic in nature requiring intermittent chronic use of inhalers.  His physical profile serial was 3 3 1 1 1 1.  The MEB recommended that the applicant be referred to a physical evaluation (PEB).   

The applicant did not agree with the findings and recommendation of the MEB, stating that although he did concur with the findings relating to his right arm fracture and his chronic asthma, he felt that the additional conditions of his lower back pain and right eye growth should have been considered by the board.  He stated the lower back pain occurred in 1995 while in preparation for a field training exercise and the right eye growth occurred in late 1993 due to a fuel splash.

His appeal was considered, but the original findings and recommendation were confirmed.  

On 4 November 1997 a PEB met at Fort Sam Houston and determined that the applicant’s disabilities, as indicated by the MEB, precluded the applicant from performing his duties required by his grade and military specialty, and found him physically unfit, recommending a disability rating of 20 percent, and that he be separated with severance pay.  The applicant nonconcurred and requested a formal hearing.

On 18 December 1997 the applicant and counsel appeared before a formal PEB. That board reevaluated all the medical records and sworn testimony by the applicant.  It adhered, however, to its original findings and recommendations.

Based on a request from the medical activity at Fort Campbell, the case was returned to that activity.  A physician at Fort Campbell felt that the applicant’s chronic left upper quadrant required additional evaluation which could result in a new medically unacceptable condition.  The applicant’s condition was evaluated and a medical addendum to the board was prepared.  The examining physicians diagnosed the applicant’s condition as chronic abdominal and flank pain, which was medically unacceptable, and miscellaneous conditions and defects, which interfered with the satisfactory performance of his duties.

On 6 February 1998 the applicant was notified by the physical disability agency that the medical addendum had been added to his file, and reviewed by medical experts at that agency.  Their review determined that there was no additional unfitting conditions beyond those already adjudicated by the PEB, and therefore, the PEB finding was affirmed.

The applicant was discharged on 16 March 1998.  He had 6 years, 8 months, and 21 days of service.  He received disability severance pay of $22,705.20.  

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, it is concluded:

1.  The applicant's disabilities were properly rated in accordance with the VA Schedule for Rating Disabilities.  His separation with severance pay was in compliance with law and regulation.          

2.  There is no evidence that the applicant has received a VA rating for his disabilities.  Nonetheless, a 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.  No medical evidence has been presented by the applicant to demonstrate an injustice in the disability rating that he received by the Army.  His 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.

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

5.  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.

6.  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

___jea___  ___emw_  ___jns___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030410	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000406	
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.