MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  27 June 2000
	DOCKET NUMBER:  AR1999033963

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Walter T. Morrison		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 he be retired by reason of physical disability instead of separated by reason of physical disability.

APPLICANT STATES:  That he only received a 10 percent disability rating for a chronic back condition but was subsequently rated by the VA as 70 percent disabled.  He submits a copy of his VA rating in support of his application.

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

He entered the Active Guard/Reserve (AGR) program on 7 September 1986, in grade E-5, as a construction equipment repairer.  He reenlisted for 6 years effective 25 April 1991.  The available history of his NCO Evaluation Reports (NCOER) shows that he had always passed his physical fitness test and, despite continuing weight gains, was within body fat standards.

His NCOER issued on 1 September 1994, shows that he had a physical profile starting in March 1994.  The medical profile is not in the available record but the NCOER states that it did not hinder the duty performance of the applicant.  He was promoted to grade E-6 effective 1 November 1994.  He extended his enlistment for 6 months effective 25 April 1997.

The applicant was notified on 1 May 1997, that he had been barred from further reenlistment in the AGR program by the USAR AGR Qualitative Management Program (QMP).  The board had convened on 4 March 1997 to select and retain the best qualified soldiers on active duty.  The options available to him or the required date of separation are not in the available record.

The applicant was referred to a Medical Evaluation Board (MEB) (COPY ATTACHED) to determine his physical fitness.  The chief complaint was noted as chest pain from coronary artery spasm with angina that was controlled at that time with medication.  Additionally, he had a significant history of chronic back problems, hernia, migraine headaches, gastroesophageal reflux, and hypertension.

On examination the applicant was in no apparent distress and, except for orthopedics and being overweight, was unremarkable.  The final assessment showed spastic coronary artery disease (controlled with medication), gastroesophageal reflux disease (controlled with medication), history of migraines, hypertension (controlled), and chronic back pain.

The separate orthopedic examination showed a 10 year history of low back pain from a volleyball injury.  X-ray examination of the cervical and lumbosacral spine revealed decreased disk space and degenerative changes.  The diagnosis provided was chronic back and cervical pain with degenerative disk disease.  The applicant was referred to a Physical Evaluation Board (PEB) for a fit for duty determination with a physical profile of 3/3/3/1/1/1.

A 30 December 1997 PEB found the applicant unfit for duty as a motor sergeant. The PEB recommended separation with disability severance pay rated at 10 percent for chronic back and cervical pain with degenerative disk disease.  The other MEB diagnoses were not judged unfitting and not rated.

The applicant was offered the choice of transfer to the Retired Reserve with entitlement to retired pay at age 60 or disability severance pay.  On 14 January 1998 the applicant concurred with the finding and accepted disability severance pay.  The PEB was approved on behalf of the Secretary of the Army on 22 January 1998.

Effective 23 July 1998 the applicant was separated under the authority of Army Regulation 635-40, paragraph 4-24b (3) with disability severance pay.  He had 11 years, 10 months, and 17 days creditable service for this period of active duty.

The applicant provides a copy of a Veteran’s Administration (VA) rating decision  (COPY ATTACHED), dated 24 February 1999.  The VA rated the applicant at 60 percent for cardiovascular disease, degenerative joint disease of the thoracic, cervical, and lumbosacral spine at 10 percent each, degenerative joint disease of the right knee at 10 percent for a combined rating of 70 percent.

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.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  Appendix B of the regulation, Army Application of the VA Schedule for Rating Disabilities, paragraph B-3f, provides that conditions which do not render a soldier unfit for military service will not be considered in determining the compensable disability rating unless the conditions contribute to the finding of unfitness.

Title 38, USC, 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 disability was properly rated by the Army in accordance with the VA Schedule for Rating Disabilities.  His separation with severance pay was in compliance with laws and regulations.  The fact that the VA, in its discretion, has awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish a higher level of physical unfitness for Department of the Army purposes.

2.  Placement on the Disability Retired List was precluded since the applicant had completed less than 20 years of service and received a disability rating of less than 30 percent.

3.  In the absence of medical evidence to the contrary, it is presumed that the available service records are correct as presently constituted.  No medical evidence has been presented by the applicant to demonstrate an injustice in the MEB or PEB received in service.  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.

4.  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.

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

__mm____  ___cg___  __wm___  DENY APPLICATION

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

INDEX

CASE ID	AR1999033963	
SUFFIX		
RECON		
DATE BOARDED	20000627	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.02	
2.		
3.		
4.		
5.		
6.