RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 November 2005 DOCKET NUMBER: AR20050001102 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Mr. Robert J. McGowan Analyst The following members, a quorum, were present: Ms. Margaret K. Patterson Chairperson Ms. Linda D. Simmons Member Mr. Michael J. Flynn Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, permanent disability retirement in lieu of disability separation. 2. The applicant states he should have been rated 30 percent disabled and medically retired. 3. The applicant provides: a. A personal statement, dated 2 December 2004. b. A copy of DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 22 January 2003. c. Copies of a Department of Veterans Affairs (DVA) Compensation and Pension Exam Reports, dated 22 and 29 May 2002. d. Medical records, dated 16 December 2003. e. Various other DVA medical records. CONSIDERATION OF EVIDENCE: 1. With prior Army National Guard experience, the applicant's records show he enlisted in the Regular Army for 3 years on 14 October 1993. He then served on continuous active duty until he was retired by reason of temporary disability on 9 December 1998 in the grade of E-4. 2. The complete evidence pertaining to the applicant's physical disability processing is not available in the records. However, his DD Form 214 (Certificate of Release or Discharge From Active Duty) and his retirement order shows that he was retired on 9 December 1998 and placed on the Temporary Disability Retired List (TDRL) on 10 December 1998 with a temporary disability rating of 40 percent. 3. The records show the applicant was given a formal PEB on 22 January 2003 at Fort Sam Houston, Texas. The PEB revealed the following disability descriptions: a. "Major Depressive Disorder. Rated as mild. Taking anti-depressant medication, participating in follow-up treatment, employed, attending school." Rated at 10 percent. b. "Chronic Low Back Pain and Chronic Bilateral Foot Pain. Rated as slight and occasional." Rated at 0 percent. c. "Status Post Proximal Interphalangeal Joint Fusion." Rated at 0 percent. The PEB found the applicant unfit with a combined disability rating of 10 percent and recommended he be separated with severance pay, if otherwise qualified. 4. The applicant's separation order removing him from the TDRL and separating him with a 10 percent disability and severance pay is not available. 5. On 13 August 2002, the DVA examined the applicant and found him to be 70 percent disabled for major depression, 10 percent disabled for reason of low back pain, and 10 percent disabled for bilateral foot pain. 6. The applicant was admitted to a DVA medical facility on 14 December 2003. He was treated and diagnosed as having bipolar disorder; depression not otherwise specified; episodic alcoholism; low back pain; and arthritis in the feet. The Discharge Summary notes recent alcohol abuse and use of crack cocaine. 7. Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay. Section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rating of at least 30 percent. Title 38, United States Code, sections 310 and 331, permit the Department of Veterans Affairs (VA) to provide treatment and to award compensation for disabilities which were incurred in or aggravated by active military service. 8. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Chapter 61, Title 10, United States Code (10 USC 61) and Department of Defense Directive (DODD) 1332.18. It 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. If a Soldier is found unfit because of physical disability, the regulation provides for disposition of the Soldier according to applicable laws and regulations. Paragraph 4-24e(1) of the regulation then in effect states that, based upon the final decision, the US Total Army Personnel Command (PERSCOM, now the US Army Human Resources Command, Alexandria, Virginia) will issue retirement orders for permanent retirement for physical disability. 9. Army Regulation 635-40, paragraph 7-2, provides a distinction between a temporary and permanent physical disability. It states that an individual may be placed on the TDRL (Temporary Disability Retired List) for a maximum period of 5 years (which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty, or the individual's disability is not stable and the degree of severity may increase within the next 5 years so as to change the disability rating. DISCUSSION AND CONCLUSIONS: 1. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. The percentage of disability rating reflects the Soldier's physical condition at separation and that percentage is permanent. The only time an Army rating may change is during a Soldier's period on the TDRL while awaiting stabilization of an unfitting condition. 2. The applicant's contention that he should have been permanently retired by reason of physical disability is without merit. The PDES provides for the periodic re-evaluation of Soldiers placed on the TDRL to determine whether their disabilities have changed. The applicant was evaluated at Fort Sam Houston in January 2003 and his disabilities were found to have improved. Although he was still determined to be unfit for military service, his percentage of disability had decreased from 40 percent to 10 percent. Based upon regulations and public law, he was removed from the TDRL and separated. 3. The DVA is not required to find unfitness for duty. An award of a DVA rating does not establish entitlement to medical retirement or separation from the Army. Operating under different law and its own policies and regulations, the DVA, which has neither the authority nor the responsibility for determining medical unfitness for military service, 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 his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. 4. The difference in military and DVA ratings arises out of the basic postulates upon which disability ratings are based by the two agencies of the Government. Military disability awards arise out of and are compensation for the military career interruption produced by an unfitting disease or injury. DVA benefits are based on the impairment of civilian career or employment arising from service-connected or aggravated disease or injury. It is, therefore, not unexpected that these two different systems should, at times, produce different evaluations of the impairment arising out of the same injury or disease. 5. 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. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __mkp___ __lds___ __mjf___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. Margaret K. Patterson ______________________ CHAIRPERSON INDEX CASE ID AR20050001102 SUFFIX RECON DATE BOARDED 20051110 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION (DENY) REVIEW AUTHORITY ISSUES 1. 108.0200 2. 108.0400 3. 4. 5. 6.