MEMORANDUM OF CONSIDERATION IN THE CASE OF: BOARD DATE: 23 February 2000 DOCKET NUMBER: AR1999031973 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. Analyst The following members, a quorum, were present: Chairperson Member 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 discharge with severance pay be corrected to a medical retirement. APPLICANT STATES: That since she was enlisted without any existing medical condition, her Physical Evaluation Board (PEB) improperly deducted an Existing Prior to Service (EPTS) percentage of her disability rating. In support of her application she submits a memorandum from the Disabled American Veterans (DAV) to the VA. In that memorandum the DAV stated that a clear and unmistakable error was made by the Army when her seizure disorder was reduced to noncompensatable due to a finding it was secondary to her congenital brain malformation. DAV argued that since there is a presumption of soundness when a person enlists and she neither experienced any seizures nor was she ever diagnosed as having a congenital brain malformation until after she was on active duty, she was entitled to a disability rating for those conditions without deduction for the conditions EPTS nature. The applicant also submits a VA rating decision in which that Department’s rating history of the applicant was outlined; 70 percent in 1986 to 10 percent in 1992 to 60 percent in 1999. In the last VA rating decision it was stated that since her congenital conditions did not manifest themselves prior to her entry on active duty, there was a clear and unmistakable error for that department to subtract an EPTS portion of her rating. EVIDENCE OF RECORD: The applicant's military records show: She enlisted in the Regular Army with no prior service on 14 August 1984, was awarded the military occupational specialty of petroleum supply specialist, and was promoted to pay grade E-3. On 17 June 1985 a PEB convened and determined that the applicant was physically unfit due to seizure episodes secondary to congenital brain malfunction of left hemisphere, also associated with low normal enlistment aptitude scores and right upper extremity deformity. The PEB determined that those medical conditions were EPTS but were service aggravated. The PEB rated her disability at 60 percent disabling and deducted 50 percent for the EPTS nature of the conditions. The PEB recommended that she be discharged with severance pay, rated 10 percent disabled. The PEB’s findings and recommendation were later revised to show that her total disability was 70 percent disabling, giving her an adjusted compensatable rating of 20 percent. The revised PEB’s findings and recommendation were approved and the applicant was discharged on 2 January 1986. Army Regulation 635-40, paragraph 3-2, specifies that a presumption will be made that a soldier was in sound physical and mental condition upon entering active service except for physical disabilities noted and recorded at the time of entry, and that any disease or injury discovered after a soldier entered active service, with the exception of congenital and hereditary conditions, that was not due to the member’s own misconduct, will be considered in line of duty. Paragraph 4-19b of this regulation states that a PEB may decide that a soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service. If the PEB determines that a soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service. The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation. DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded: 1. A military entrance physical examination is not an in depth comprehensive physical examination. As a result, many medical conditions which exist at the time of entry are not diagnosed. That doesn’t mean those conditions don’t exist, it just means that they haven’t manifested themselves yet and have not, therefore, been diagnosed. 2. It is evident from the fact that the applicant’s underlying medical condition, congenital brain malfunction of left hemisphere, a condition which existed at birth, was EPTS. The fact that it was also associated with low normal enlistment aptitude scores and a right upper extremity deformity further confirms that the condition was EPTS. 3. Since the applicant’s seizures were directly caused by her EPTS condition, those seizures were also EPTS. 4. 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. Rating actions by the VA do not compel the Army to modify its rating. 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 __xxx___ _xxx____ __ xxx __ DENY APPLICATION Karl F. Schneider Director, Army Review Boards Agency INDEX CASE ID AR1999031973 SUFFIX RECON YYYYMMDD DATE BOARDED 200002YYYYMMDD 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. 108.04 2. 3. 4. 5. 6. ABCMR Memorandum of AR1999031973 Consideration (cont) 5