MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  17 June 1999                   
	DOCKET NUMBER:  AR1999024393

	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. Loren G. Harrell		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Ernest W. LutZ		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 essence, that her honorable discharge for disability, with severance pay, be changed to a medical retirement with full benefits.

APPLICANT STATES:  In essence, that she believes her medical discharge with a 
10% lump sum payment was unjust.  The Department of Veterans Affairs (DVA) determined that she is 70% disabled. 

COUNSEL CONTENDS:  Counsel provided no additional information for the Board to consider.

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

She enlisted in the Regular Army (RA) on 8 April 1988 and served until she was honorably discharged on 5 December 1991.  On 6 December 1991, she reenlisted for 
3 years, pay grade E-4 and her current military occupational specialty ( MOS) 
63B (Light Wheel Vehicle Mechanic). 

The evidence available shows that the applicant had a ganglionic cyst removed from her left wrist in February 1992.  In February 1993 she began experiencing lower back pain after being involved in a HUMMV accident while assigned to Panama.  In May 1993, she was reassigned to Fort Hood, Texas, and continued to experience lower back pain.  In September 1993, she was diagnosed to have degenerative disc disease.  In October 1993, she received a P3 profile for pushups, sit-ups, running and heavy lifting.  In February 1994, she underwent surgery for endometriosis (tissue resembling the uterine mucous membrane which occurs in various locations in the pelvic cavity), at the Brooke Army Medical Center, Texas. 

On 25 August 1994 (finalized 12 September 1994), a Medical Evaluation Board (MEBD) diagnosed the applicant as having a "degenerative disc disease; chronic low back pain; a recurrent ganglionic cyst, left dorsal wrist; and endometriosis.  Her status was deemed post gynecological surgery."  She was diagnosed as being unfit for further military service and was referred to the Physical Evaluation Board (PEB).  

On 17 October 1994, a PEB determined that the applicant was 10% disabled as a result of the "degenerative disc disease, low back pain. "  Neither the recurring ganglionic cyst nor the endometriosis was determined to be disabling.  The applicant did not concur with the findings and requested a formal hearing with a personal appearance. 

On 30 November 1994, a formal PEB found the applicant fit for duty.  The applicant concurred. 

In February 1995, she received a new permanent L3 Profile that added no bending or picking up heavy objects and she was authorized to take an alternative Army Physical Fitness Test (APFT).  She was authorized to walk in lieu of the run.  As a result of this profile she underwent an MOS Medical Retention Board (MMRB) in April 1995.  Again the applicant was found to be unfit for duty with her present MOS and a MEBD was recommended.

On 6 March 1996, the MEBD diagnosed the applicant to have "degenerative disc disease, central intervertebral annular bulging without NP; chronic low back pain; and recurrent dorsal wrist ganglion cyst, status post excision requiring second surgery." 

On 7 May 1996, a PEB found the applicant unfit for duty with a disability rating of 
10% and recommended that the applicant be separated with severance pay.  On 
28 May 1996, the applicant concurred with the PEB's findings and waived a formal hearing.

On 31 July 1996, the applicant was separated from the service with an honorable discharge under the provisions of chapter 4, Army Regulation 635-40.  She received $24,508.80 disability severance pay.  She had completed 3 years, 7 months, and 
28 days of prior active military service, and 4 years 7 months and 25 days on the enlistment under review.  She completed a total of 8 years, 3 months, and 23 days active military service.

On 4 September 1996, a Department of Veteran Affairs (DVA) Rating Decision shows that the DVA determined the applicant was 70% disabled.  She received a 
60% disability rating due to her spinal disc condition, a 10% disability rating for endometriosis and a 10% disability rating for tendon inflammation.

In connection with this application, the Medical Advisor to this Board, opined (COPY ATTACHED), in essence, that a PEB found the applicant unfit for duty with a disability rating of 10% and a disposition of separation with severance pay.  The applicant concurred.  On 4 September the DVA established that the applicant had a combined disability rating of 70%.  "A review of the DVA's rating form, the MEBD's narrative summary, and the Veterans Administration Schedule for Rating Disabilities (VASRD) is evidence that the PEB of 7 May 1996 was correct in their rating determination.  There is no medical reason to change the discharge status at this time."

The above advisory opinion was referred to both the applicant and her counsel for comment or rebuttal and both failed to respond.

Title 10, United States Code, Section 1203 then in effect provided that a service member determined to be physically unit to perform the duties of his/her office, rank, grade or rating because of a disability incurred while entitled to basic pay could be separated with severance pay if the disability rating was less than 30 percent .

Title 38, United States Code, section 310 and 331, permits the VA to award compensation for a medical condition that was incurred or aggravated by active military service.

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(s), it is concluded:

1.  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

2.  The applicant was properly separated in accordance with the regulations then in effect.  

3.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and rated at the time of her discharge.  The applicant's DVA record shows nothing to the contrary nor has the applicant provided any medical probative evidence.

4.  The rating action by the DVA does not necessarily demonstrate any error or injustice in the initial rating.  The fact that the DVA, 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 basis for medical retirement for Department of the Army purposes.

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

JLP_____  TAP_____  EWL____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999024393	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990717	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19960731	
DISCHARGE AUTHORITY	AR635-40, chapter 4  	
DISCHARGE REASON	Disability, Severance Pay	
BOARD DECISION	(NC)	
REVIEW AUTHORITY		
ISSUES         1.	Request medical retirement.	
2.		
3.		
4.		
5.		
6.		

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.