MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           29 JANUARY 2002
	DOCKET NUMBER:   AR2001064266

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen A. Heinz		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:  Reconsideration of his earlier appeal to correct his military records to show that he was retired by reason of physical disability rather than merely separated with entitlement to severance pay.

APPLICANT STATES:  In effect, that he is not asking for disability retirement for himself, but rather he is asking for his life, his wife’s hardship, and for his three children.  He reiterates, as he did in original application, that his career and dreams were derailed because of another soldier’s actions and he does not understand “why after all these years the Army have [sic] not compensated [him] and [his] family.”  In support of his request he submits copies of his December 2000 disability rating decision from the VA, implying that the VA rating justifies increasing his Army disability rating.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records that were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 10 October 2001 (AR2001057413).  The applicant’s submission of his VA disability rating decision was considered a new argument that required Board consideration.

The applicant was discharged on 17 May 1983 by reason of a physical disability (trochanter bursitis, right hip) rated at 10 percent by the Army.  

The VA document submitted by the applicant appears to indicate that his right hip condition, manifested by limitation of flexion, was at one time rated by the VA at 10 percent and increased to 30 percent effective 11 August 1999, more than 10 years after his separation from active duty.  The applicant also had a 10 percent rating from the VA for “overuse syndrome of the left hip, manifested by limitation of flexion” which was subsequently increased to 20 percent in June 2000.  Although it is unclear what the VA’s original level of compensation was for the applicant’s right hip condition, the available VA document does note that the applicant’s “service connection for trochanteric bursitis of the right hip was granted by a rating dated 6/7/83” and that the applicant “filed for an increased rating on 12/5/96.”

The VA document also indicated that the applicant was granted service connected disability ratings of 10 percent for “avascular necrosis and bursitis of the right hip, manifested by limitation of adduction and internal rotation” and for

“overuse syndrome of the left hip, manifested by limitation of internal rotation.”  He also was granted “entitlement to individual unemployability.”  The ratings were effective 8 June 2000.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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 Board has considered the applicant’s contention that because the VA has rated his service connected disabilities at a higher rate than the Army’s original rating, the Army should increase its rating in order to permit the applicant to be medically retired, retroactive to his 1983 discharge action.  However, the Board notes that a 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.  Any rating action by the VA does not compel the Army to modify its rating.

2.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

3.  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.

NOTE:  

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__AAO__  __MHM__  __KAH __  DENY APPLICATION

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

INDEX

CASE ID	AR2001064266	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020129	
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.	108.00	
2.		
3.		
4.		
5.		
6.