MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  24 August 2000
	DOCKET NUMBER:  AR1999032378

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Curtis L. Greenway		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 his records be corrected to show his entitlement to incapacitation pay from 1 December 1993 to 18 September 1995, plus interest.  Also, correct his disability rating from 20 to 100 percent, with medical retirement and back pay and allowances, plus interest.

APPLICANT STATES: That in support of his first request for incapacitation pay, he provides his version of the facts shown as A through H.  In support of his second request, for medical retirement with back pay and interest, he presents 18 additional facts.  He also states the Department of Veterans Affairs (VA) has awarded him a 100 percent disability rating.  He submits that he received incapacitation pay from June through November 1993.

The documentation submitted with his request is incorporated herein and need not be further addressed here.

COUNSEL CONTENDS: Counsel was silent on the issues.

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

On 1 July 1990, the applicant was honorably separated from active service, in the rank of captain, after completing 14 years, 1 month and 15 days of creditable service.  He was separated under Army Regulation (AR) 635-100, based on his failure of selection for permanent promotion.  He received separation pay in the amount of $30,000.  He was transferred to the Army Reserve Control Group (Reinforcement).

On 30 December 1994, Medical Evaluation Board (MEBD) proceedings indicate: (1) Lumbar radiculopathy secondary to left L4-5 herniated nucleus pulposus;    (2) neurogenic (forming nervous tissue or stimulating nervous energy) bladder; (3) benign prostate hypertrophy; (4) non-cardiogenic chest pain;                        (5) Hypercholesterolemia; (6) osteoarthritis of the knees, left ankle, and feet;        (7) post-traumatic osteoarthritis of the left elbow; (8) degenerative joint disease of the spine, knees, and ankles; (9) folliculitis/furunculosis of the buttocks;               (10) staph aureus colonization of the nares; (11) herpes genitalis; (12) fecal incontinence secondary to lower motor nerve injury to sacral roots;                  (13) gastroesophageal reflux disease; (14) internal hemorrhoids; and,              (15) tension headaches.

On 5 April 1995, Physical Evaluation Board (PEB) proceedings found he had neurogenic bladder, fecal incontinence, secondary to degenerative joint disease of spine.  EPTS – service aggravated and recommended a 20 percent disability rating.  MEBD diagnoses 1,3,4,5,6,7,9,10,11,13,14,15,17, and 19 were found to be not unfitting and therefore not rated.  MEBD diagnoses 2,8,12,16, the NARSUM, 9 March 1995 addendum and letters from three associated doctors on 

21 March 1995 sworn testimony and exhibits were considered.  Records show he had significant degenerative joint disease of his spine, left elbow, left foot, ankle, and shoulder just prior to entry to USAR.

On 5 July 1995, the U. S. Army Physical Disability Agency (USAPDA) issued an administrative correction of the PEB Proceedings. The applicant was found unfit for the following conditions: (1) low back pain secondary to degenerative joint disease and lumbar radiculopathy secondary to left L4-5 herniated nucleus pulposus; (2) neurogenic bladder of unknown etiology; and, (3) fecal incontinence secondary to lower motor nerve injury to sacral roots of unknown etiology.  The PEB recommended 20 percent disability rating for the low back pain.  Diagnoses 2 (neurogenic bladder) and 12 (fecal incontinence) were found to be unfitting conditions, but not rated since they were determined to be not the proximate result of performing duty and there was not a causal relationship between his military duty and his present condition.

On 18 September 1995, he was honorably separated under AR 635-40, based on physical disability with severance pay.  His overall physical disability rating was 20 percent.

On 26 July 1996, his commander’s request for an extension of incapacitation pay was not acted upon by the Office of the Chief, Army Reserve.  The basis for the request was that the applicant was discharged from the Reserve as unfit, with a 20 percent disability rating, effective 18 September 1995.  He was advised to apply to the Army Board for Correction of Military Records for this purpose.

On 1 December 1999, the Medical Advisor, Army Review Boards Agency (ARBA) opined that the applicant received a full and fair hearing, that the rating percentage was correctly derived from the VASRD at the time that they were applied, and there has been no new or substantive medical evidence presented. 

On 3 December 1999, the ARBA opinion was furnished to the applicant for his acknowledgment/rebuttal.  On 25 March 2000, the applicant submitted a rebuttal to this opinion.  He stated, among other things, that the “agency’s doctors have not given the benefit of doubt to this soldier.”

On 25 March 2000, the applicant submitted a rebuttal to the ARBA opinion.  He stated that he did not understand the Board’s skewed medical logic provided by the medical advisor.  He contends the medical advisors have repeated hearsay evidence and have not stated any factual evidence.  He posed several medically related questions for the medical advisor.  He alleges the medical advisor’s opinions are absent of medical facts.  Further, he alleges the PEB rendered an autocratic decision and that this Board and the PEB will reiterate the same autocratic decision.  In summary, the medical advisors have not given the benefit of the doubt to him, thus rendering a capricious medical opinion.
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 the said medical condition reduces or impairs the social or industrial adaptability of the individuals 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.

AR 135-381 and title 37, U.S. Code, §204, provides for continuation of pay and allowances under certain circumstances to reservists who are disabled in line of duty as a direct result of the performance of their duties.  To receive continuation of pay, referred to as incapacitation pay, reservists must either be unable to perform their normal military duties or be able to show a loss of nonmilitary income.  If the reservist continues to work at his or her civilian job, the amount of money earned is deducted from the incapacitation pay.  Entitlement to incapacitation pay is limited to 6 months unless the Secretary of the Army finds that it is clearly in the interest of fairness and equity to extend the incapacitation pay.  Only in the most meritorious cases will incapacitation pay be extended past the 6-month limitation.  Incapacitation payments are made by the servicing Army finance and accounting office.

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, it is concluded:

1.  Medical records show the applicant had significant degenerative joint disease of his spine, left elbow, left foot, ankle, and shoulder just prior to entry to USAR.  He was properly awarded a 20 percent disability rating.

2.  The ARBA Medical Advisor, in a comment to this Board, recommended that the records not be changed on a medical basis.

3.  The applicant received separation pay of $30,000 based on his separation for failure of promotion.  He was fit upon separation and transfer to the Reserve.  While in the Reserve he received a 20 percent disability rating based on low back pain and was not rated for all other claims.  He was properly discharged with severance pay.

4.  No evidence was provided to indicate the applicant appealed the PEBD proceedings or the administrative correction from the USAPDA.  The applicant received a fair hearing in his case.  He has not shown otherwise.

5.  He has not shown entitlement to a further disability rating of 100 percent, or an extension of incapacitation pay beyond November 1993.  The basis of the request for the incapacitation pay extension from December 1993 to his discharge on 18 September 1995, is not meritorious and simply not justified.
6.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout their lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

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 this 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

__gp___  __ar___  __cg____ DENY APPLICATION

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

INDEX

CASE ID	AR1999032378	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000824	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.128	incapacitation pay	
2.136	PDR	
3.		
4.		
5.		
6.