MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 July 2000                 
	DOCKET NUMBER:    AR1999034897

	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. Edmund P. Mercanti		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:  That her discharge with severance pay for physical disability be corrected to a medical retirement, rated 30 percent disabled.

APPLICANT STATES:  The medical evidence clearly established that her physically unfitting condition was chronic which warranted a 30 percent disability rating.  She also charges that she was given improper counsel concerning her right to refute the findings and recommendation of her Physical Evaluation Board (PEB).

EVIDENCE OF RECORD:  The applicant's military records could not be located.  The following information was derived from records maintained by the Physical Disability Agency.

She enlisted in the Regular Army on 28 June 1995 and was promoted to pay grade E-4.

On 2 March 1999 an informal PEB was convened which determined that the applicant was physically unfit due to “Partial seizures with secondary generalization, etiology undetermined, first seizure Apr 96, second seizure due to failure to take anticonvulsant medication (Oct 97) with two other seizures due to noncompliance.  Has been seizure free since Jul 98, on Lamictal and continues in good control with this medication, but likelihood of recurrence with stress/sleep deprivation remains high.”  The PEB recommended that the applicant be discharged with severance pay, rated 20 percent disabled.  (Although the record does not contain the portion of the PEB summary which would show whether the applicant concurred with the findings and recommendation of the PEB, it is evident that she did concur because there is no evidence of a formal hearing.)

The records provided by the PDA do not contain the applicant’s discharge.

The Veterans Administration Schedule for Rating Disabilities (VASRD), code 8910, provides a general rating formula for major and minor seizures.  This rating formula states that for a 40 percent rating a soldier/veteran must have experienced at least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly.  For a 20 percent rating a soldier/veteran must have experienced at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months.  There is no 30 percent rating listed for seizures.

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.  The only seizures the applicant experienced after her initial seizure in April 1996 were due solely to her noncompliance with her seizure medication prescription.  As such, she was for all intents and purposes seizure free for almost three years.

2.  In view of the preceding conclusion it appears that the PEB actually gave the applicant the benefit of doubt by rating her 20 percent disabled.  As for the applicant’s contention that she was not provided proper counsel concerning her rights during the PEB hearing, she has not provided any evidence to support that allegation.

3.  The fact that the Department of Veterans Affairs (DVA) granted the applicant a higher disability rating for her seizure disorder does not indicate that an error was made by the Army.  The DVA awards ratings based on its own laws and regulations.  That Department may have awarded the applicant the higher rating based on the frequency of her seizures without regard to the fact that those seizures were the result of her noncompliance with medical orders to take 
anti-seizure medication.  

4.  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	AR1999034897	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000713	
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.		
2.		
3.		
4.		
5.		
6.