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MEMORANDUM OF CONSIDERATION by NR2wYa

VIEWS: 2 PAGES: 6

									                        MEMORANDUM OF CONSIDERATION


       IN THE CASE OF:



       BOARD DATE: 24 August 2000
       DOCKET NUMBER: AR1999032378

       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. Lee Cates                                        Analyst


  The following members, a quorum, were present:

       Mr. George D. Paxson                                 Chairperson
       Mr. Allen L. Raub                                    Member
       Mr. Curtis L. Greenway                               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)
ABCMR                                     Memorandum                                          of
AR1999032378
Consideration (cont)

APPLICANT REQUESTS: That his records be corrected to show his entitlement to
incapacitation pay from 1 December 1993 to 18 September 1995, plus interest. Also,
correct his disability rating from 20 to 100 percent, with medical retirement and back pay
and allowances, plus interest.

APPLICANT STATES: That in support of his first request for incapacitation pay, he
provides his version of the facts shown as A through H. In support of his second
request, for medical retirement with back pay and interest, he presents 18 additional
facts. He also states the Department of Veterans Affairs (VA) has awarded him a 100
percent disability rating. He submits that he received incapacitation pay from June
through November 1993.

The documentation submitted with his request is incorporated herein and need not be
further addressed here.

COUNSEL CONTENDS: Counsel was silent on the issues.

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

On 1 July 1990, the applicant was honorably separated from active service, in the rank
of captain, after completing 14 years, 1 month and 15 days of creditable service. He
was separated under Army Regulation (AR) 635-100, based on his failure of selection
for permanent promotion. He received separation pay in the amount of $30,000. He
was transferred to the Army Reserve Control Group (Reinforcement).

On 30 December 1994, Medical Evaluation Board (MEBD) proceedings indicate: (1)
Lumbar radiculopathy secondary to left L4-5 herniated nucleus pulposus;          (2)
neurogenic (forming nervous tissue or stimulating nervous energy) bladder; (3) benign
prostate hypertrophy; (4) non-cardiogenic chest pain;                            (5)
Hypercholesterolemia; (6) osteoarthritis of the knees, left ankle, and feet;         (7)
post-traumatic osteoarthritis of the left elbow; (8) degenerative joint disease of the
spine, knees, and ankles; (9) folliculitis/furunculosis of the buttocks;               (10)
staph aureus colonization of the nares; (11) herpes genitalis; (12) fecal incontinence
secondary to lower motor nerve injury to sacral roots;                      (13)
gastroesophageal reflux disease; (14) internal hemorrhoids; and,                   (15)
tension headaches.

On 5 April 1995, Physical Evaluation Board (PEB) proceedings found he had
neurogenic bladder, fecal incontinence, secondary to degenerative joint disease of
spine. EPTS – service aggravated and recommended a 20 percent disability rating.
MEBD diagnoses 1,3,4,5,6,7,9,10,11,13,14,15,17, and 19 were found to be not unfitting
and therefore not rated. MEBD diagnoses 2,8,12,16, the NARSUM, 9 March 1995
addendum and letters from three associated doctors on

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ABCMR                                    Memorandum                                      of
AR1999032378
Consideration (cont)

21 March 1995 sworn testimony and exhibits were considered. Records show he had
significant degenerative joint disease of his spine, left elbow, left foot, ankle, and
shoulder just prior to entry to USAR.

On 5 July 1995, the U. S. Army Physical Disability Agency (USAPDA) issued an
administrative correction of the PEB Proceedings. The applicant was found unfit for the
following conditions: (1) low back pain secondary to degenerative joint disease and
lumbar radiculopathy secondary to left L4-5 herniated nucleus pulposus; (2) neurogenic
bladder of unknown etiology; and, (3) fecal incontinence secondary to lower motor
nerve injury to sacral roots of unknown etiology. The PEB recommended 20 percent
disability rating for the low back pain. Diagnoses 2 (neurogenic bladder) and 12 (fecal
incontinence) were found to be unfitting conditions, but not rated since they were
determined to be not the proximate result of performing duty and there was not a causal
relationship between his military duty and his present condition.

On 18 September 1995, he was honorably separated under AR 635-40, based on
physical disability with severance pay. His overall physical disability rating was 20
percent.

On 26 July 1996, his commander’s request for an extension of incapacitation pay was
not acted upon by the Office of the Chief, Army Reserve. The basis for the request
was that the applicant was discharged from the Reserve as unfit, with a 20 percent
disability rating, effective 18 September 1995. He was advised to apply to the Army
Board for Correction of Military Records for this purpose.

On 1 December 1999, the Medical Advisor, Army Review Boards Agency (ARBA)
opined that the applicant received a full and fair hearing, that the rating percentage was
correctly derived from the VASRD at the time that they were applied, and there has
been no new or substantive medical evidence presented.

On 3 December 1999, the ARBA opinion was furnished to the applicant for his
acknowledgment/rebuttal. On 25 March 2000, the applicant submitted a rebuttal to this
opinion. He stated, among other things, that the “agency’s doctors have not given the
benefit of doubt to this soldier.”

On 25 March 2000, the applicant submitted a rebuttal to the ARBA opinion. He stated
that he did not understand the Board’s skewed medical logic provided by the medical
advisor. He contends the medical advisors have repeated hearsay evidence and have
not stated any factual evidence. He posed several medically related questions for the
medical advisor. He alleges the medical advisor’s opinions are absent of medical facts.
 Further, he alleges the PEB rendered an autocratic decision and that this Board and
the PEB will reiterate the same autocratic decision. In summary, the medical advisors
have not given the benefit of the doubt to him, thus rendering a capricious medical
opinion.
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ABCMR                                    Memorandum                                      of
AR1999032378
Consideration (cont)

Title 38, United States 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 the said medical condition reduces or impairs the social or industrial adaptability of
the individuals 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.

AR 135-381 and title 37, U.S. Code, §204, provides for continuation of pay and
allowances under certain circumstances to reservists who are disabled in line of duty as
a direct result of the performance of their duties. To receive continuation of pay,
referred to as incapacitation pay, reservists must either be unable to perform their
normal military duties or be able to show a loss of nonmilitary income. If the reservist
continues to work at his or her civilian job, the amount of money earned is deducted
from the incapacitation pay. Entitlement to incapacitation pay is limited to 6 months
unless the Secretary of the Army finds that it is clearly in the interest of fairness and
equity to extend the incapacitation pay. Only in the most meritorious cases will
incapacitation pay be extended past the 6-month limitation. Incapacitation payments
are made by the servicing Army finance and accounting office.

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, it is concluded:

1. Medical records show the applicant had significant degenerative joint disease of his
spine, left elbow, left foot, ankle, and shoulder just prior to entry to USAR. He was
properly awarded a 20 percent disability rating.

2. The ARBA Medical Advisor, in a comment to this Board, recommended that the
records not be changed on a medical basis.

3. The applicant received separation pay of $30,000 based on his separation for failure
of promotion. He was fit upon separation and transfer to the Reserve. While in the
Reserve he received a 20 percent disability rating based on low back pain and was not
rated for all other claims. He was properly discharged with severance pay.

4. No evidence was provided to indicate the applicant appealed the PEBD
proceedings or the administrative correction from the USAPDA. The applicant received
a fair hearing in his case. He has not shown otherwise.


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ABCMR                                     Memorandum                                       of
AR1999032378
Consideration (cont)

5. He has not shown entitlement to a further disability rating of 100 percent, or an
extension of incapacitation pay beyond November 1993. The basis of the request for
the incapacitation pay extension from December 1993 to his discharge on 18
September 1995, is not meritorious and simply not justified.
6. An award of a VA rating does not establish entitlement to medical
retirement or separation from the Army. Operating under its own policies and
regulations, the VA, which has neither the authority nor the responsibility for
determining medical unfitness for military duty, awards ratings because a
medical condition is related to service ("service-connected") and affects the
individual's civilian employability. Furthermore, the VA can evaluate a
veteran throughout their lifetime, adjusting the percentage of disability based
upon that agency's examinations and findings. The Army must find that a
service member is physically unfit to reasonably perform their duties and
assign an appropriate disability rating before they can be medically retired or
separated.

7. 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 this
requirement.

8. 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

__gp___ __ar___ __cg____ DENY APPLICATION




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




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ABCMR                           Memorandum                    of
AR1999032378
Consideration (cont)


                                 INDEX

CASE ID                AR1999032378
SUFFIX
RECON                  YYYYMMDD
DATE BOARDED           20000824
TYPE OF DISCHARGE      (HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE      YYYYMMDD
DISCHARGE AUTHORITY    AR . . . . .
DISCHARGE REASON
BOARD DECISION         (NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES        1.128    incapacitation pay
           2.136       PDR
           3.
           4.
           5.
           6.




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