IN THE CASE OF: BOARD DATE: 17 December 2015 DOCKET NUMBER: AR20150005042 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that her disability discharge with severance pay be changed to physical disability retirement. 2. The applicant states after she was discharged from the Army she received a Department of Veterans Affairs (VA) rating of 30 percent retroactive to her date of discharge and her severance pay was recouped. A rating of 30 percent or more qualifies her for disability retirement. 3. The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) and Corporate Award and Rating Data, dated 23 February 2015: CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 14 October 1992. She held military occupational specialties (MOS) 31C (Single Channel Radio Operator) and 71L (Administrative Specialist). 2. On 10 September 1995, a medical evaluation board (MEB) referred the applicant to a physical evaluation board (PEB) for gastroesophageal reflux disease, gastritis with intestinal metaplasia, mild hyprgastrinemia of uncertain significance, internal hemorrhoids by colonoscopy, mild reactive airway disease, history of keloids, and history of sebaceous cyst. 3. The applicant agreed with the findings and recommendation of the MEB. She indicated she did not desire to continue on active duty. 4. On 18 September 1995 a PEB found her unfit for duty for gastritis with intestinal metaplasia with small nodular lesions, with gastroesophalael reflux manifested by chronic nausea and abdominal discomfort, intolerance of routine garrison and field rations, and frequent requirement for medical care. The other diagnoses were considered by the PEB and found to be not unfitting and therefore not ratable. The PEB recommended a disability rating of 10 percent and separation with severance pay if otherwise qualified. 5. On 20 September 1995, the applicant acknowledged she had been advised of the findings and recommendations of the PEB and received a full explanation of the results and her legal rights pertaining thereto. She concurred with the findings and recommendations of the PEB and waived a formal hearing of her case. 6. On 13 October 1995, she was honorably discharged due to disability with severance pay, in the rank of specialist/E-4. She had completed 3 years of active duty service. 7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. a. Paragraph 3-1 contains guidance pertaining to the standards of unfitness because of physical disability. It states the mere presence of 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. b. Chapter 4 contains guidance pertaining to processing through the Army PDES, which includes convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB. The PEB evaluates all cases of physical disability equitably for the Soldier and the Army. The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 8. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent. 9. Title 38, U.S. 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 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 AND CONCLUSIONS: 1. The applicant contends she should receive a physical disability retirement because the VA rated her 30 percent disabled effective 14 October 1995 and her severance pay has been recouped. 2. She provided a VA form, dated 23 February 2015, that shows she was awarded a 30 percent disability effective 14 October 1995 (the day after she was discharged due to disability with severance pay). 3. Award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service connected. 4. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. While the VA may have determined a service connection, that does not indicate the Army was in error by discharging her with a 10-percent disability rating. 5. In view of the foregoing, there is an insufficient basis for granting the applicant's request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ___x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________x_________________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20120003061 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005042 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1