RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 April 2007
      DOCKET NUMBER:  AR20060013272


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Scott W. Faught               |     |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 that his medical separation with severance pay
be changed to a medical retirement.

2.  The applicant states he had 17 years of service when he was
involuntarily discharged with severance pay, which at the present time is
being collected by the Federal government.  He was not considered for
further military service even though his records were sent to the E-7
selection board in March 1994 and his noncommissioned officer evaluation
report (NCOER) for the period August 1993 through April 1994 stated he was
awarded the Field Artillery Masters Badge and motivated his Soldiers to
complete a 35-mile road march a year before his discharge.  At the present
time, he is rated as 100 percent totally and permanently disabled by the
Department of Veterans Affairs (VA) and Social Security Administration
(SSA).  He understands that the VA and the SSA have nothing to do with the
military, but that is one of the reasons it has taken him so long to submit
his application.

3.  The applicant states he had no formal hearing, no Physical Evaluation
Board Liaison Officer (PEBLO), and his unit was in combat operations in
Haiti.  He was left in the battalion rear detachment where no one had any
experiences relating to his situation.  An informal DA Form 199 (Physical
Evaluation Board (PEB) Proceedings) was faxed to his battalion from another
duty station and he was given seven days to clear and proceed without any
chance to have a formal hearing by the PEB.

4.  The applicant states he thinks the percentage granted on the DA Form
   199 was unfair.  The DA Form 2173 (Statement of Medical Examination and
Duty Status) contradicts itself because it stated he was of sound judgment
even though he had short-term memory loss when he was admitted to the
hospital.  It does not specify that he had a combat-related head injury
that occurred during the Persian Gulf War.  The accident caused him to lose
clear fluid through the nostrils, caused short term memory loss, and caused
dilation of the ventricle in the brain.  He thinks the physical examination
and the commander’s statement were not analyzed thoroughly by the informal
PEB.

5.  The applicant provides a Standard Form (SF) 93 (Report of Medical
History); a continuation of the SF 93 on an SF 600 (Chronological Record of
Medical Care) dated 7 December 1994; his DA Form 2-1 (Personnel
Qualification Record); an NCOER for the period August 1993 through April
1994; a DA Form 2173; a DA Form 199; a DD Form 214 (Certificate of Release
or Discharge from
Active Duty) for the period ending 3 May 1995 and two prior DD Forms 214; a
letter, dated 25 September 1996, from the Department of Defense Medical
Registry; a Commander’s Performance Statement, dated 12 December 1994;
temporary change of station orders, dated 7 September 1990; an SSA Notice
of Decision, dated 12 May 2006; and a VA Rating Decision, dated 22 August
2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 May 1995.  The application submitted in this case is
dated              4 September 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  After having had prior service, the applicant enlisted in the Regular
Army on 29 September 1983.  He was promoted to Staff Sergeant, E-6 in
military occupational specialty 13F (Fire Support Specialist) effective 1
October 1987.

4.  The applicant arrived, with his unit, in Southwest Asia on or about 13
October 1990.

5.  On 3 January 1991, the applicant was injured when the 2 1/2 ton truck
in which he was riding was struck in the rear by a speeding Saudi truck.
The applicant provided a DA Form 2173, which indicated in item 11b that he
was mentally sound.

6.  The applicant returned from Southwest Asia on or about 20 April 1991.
On or about 16 September 1992, he was reassigned to Headquarters and
Headquarters Section, 3d Battalion, 7th Field Artillery, Schofield
Barracks, HI.

7.  The applicant provided an NCOER, for the period August 1993 through
April 1994, that shows his rater rated his competence as “excellence” with
comments including “awarded the Field Artillery Masters Badge,”
“accomplishes all tasks that are assigned or required by duty position,”
and “motivated his Fire Support Team to complete a 35 mile foot march
during CALFEX 1-94.”

8.  On 19 October 1994, the applicant was given a permanent 311111 profile
for degenerative joint disease of the lumbar spine with assignment
limitations of no running, jumping, or marching and no pushups, situps, or
sports.

9.  The applicant provided a Medical Evaluation Board (MEB) SF 93,
continued on an SF 600, which shows, among other medical conditions, that
he had a head injury while in the Persian Gulf War that resulted in short-
term memory loss and periods of unconsciousness.

10.  On 12 December 1994, the applicant’s commander provided a performance
statement for the applicant’s MEB.  The commander noted the applicant had
been involved in a motor vehicle accident in Southwest Asia wherein the
applicant suffered a severe impact on the frontal part of his head,
whiplash, low back strain, and short-term memory loss.  Shortly after
arriving in the commander’s unit, the applicant suffered a fall wherein he
tore ligaments in the ankle region.  Since then, his health had worsened
and he had been afflicted with lower back pain, Achilles tendonitis,
protruding bones in the knees and ankles, and he had constantly been on
sick call.  The applicant was presently working in an office where he had
to alternate between sitting and standing up due to extreme back pain.  He
was constantly talking medication for back pain.  His duties were limited
to paperwork because he was unable to run, crawl, leap, push, or pull
without undergoing extreme pain in the lower back.

11.  The applicant’s MEB Narrative Summary indicates he had been referred
to the Persian Gulf Illness Clinic for (1) bleeding of the gums; (2) rash
on the face; (3) insomnia; and (4) depression, but his chief complaint was
lower back pain since the motor vehicle accident in 1991.  On 15 December
1994, the MEB referred the applicant to a PEB with a diagnosis of
degenerative joint disease of the lumbar spine.  On 20 December 1992, the
applicant agreed with the MEB’s findings and recommendation.

12.  On 3 January 1995, an informal PEB found the applicant to be unfit
under the VA Schedule for Rating Disabilities (VASRD) code 5295 due to
degenerative joint disease of the lumbar spine, progressive symptomatology
since his motor vehicle accident, and recommended his separation with
severance pay with a    20 percent disability rating.

13.  On 5 January 1995, the applicant signed the DA Form 199 indicating he
had been advised of the findings and recommendations of the PEB and had
received a full explanation of the results of the findings and
recommendations and legal rights pertaining thereto, and he concurred and
waived a formal hearing of his case.

14.  On 3 May 1995, the applicant was discharged, with severance pay, due
to disability.  He had completed a total of 16 years, 6 months, and 26 days
of creditable active service.

15.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
In pertinent part, it states the mere presence of an 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.

16.  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.

17.  Title 10, U. S. Code, section 1203, provides for the physical
disability separation of a member who has less than 20 years service and a
disability rated at less than 30 percent.

18.  Title 10, U. S. Code, section 1212(c), states the amount of disability
severance pay received under this section shall be deducted from any
compensation for the same disability to which the former member of the
armed forces becomes entitled under any law administered by the VA.

19.  Until certain provisions of the law were changed in fiscal year 2004,
a common misconception was that veterans could receive both a military
retirement for physical unfitness and a VA disability pension.  Under the
law prior to 2004, a veteran could only be compensated once for a
disability.  If a veteran was receiving a VA disability pension and the
Board corrected the records to show the veteran was retired for physical
unfitness, the veteran would have had to have chosen between the VA pension
and military retirement.  The new law
does not apply to disability retirees with less than 20 years of service
and retirees who have combined their military time and civil service time
to qualify for a civil service retirement.

20.  The VASRD is the standard under which percentage rating decisions are
to be made for disabled military personnel.  The VASRD is primarily used as
a guide for evaluating disabilities resulting from all types of diseases
and injuries encountered as a result of, or incident to, military service.
Unlike the VA, the Army must first determine whether or not a Soldier is
fit to reasonably perform the duties of his office, grade, rank or rating.
Once a Soldier is determined to be physically unfit for further military
service, percentage ratings are applied to the unfitting conditions from
the VASRD.  These percentages are applied based on the severity of the
condition.

21.  The VASRD gives code 5295, lumbosacral strain, a 40 percent rating
when it is severe; with listing of whole spine to opposite side; positive
Goldthwaite’s sign; marked limitation of forward bending in standing
position; loss of lateral motion with osteo-arthritic changes; or narrowing
or irregularity of joint space; or some of the above with abnormal mobility
on forced motion; and a 20 percent rating when there is muscle spasm on
extreme forward bending with loss of lateral spine motion unilateral in
standing position.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant’s records were sent to the E-7
selection board in March 1994 and his NCOER for the period August 1993
through April 1994 stated he was awarded the Field Artillery Masters Badge
and motivated his Soldiers to complete a 35-mile road march a year before
his discharge.  However, evidence such as this reinforces the findings of
the informal PEB that the applicant was not so physically unfit that his
disability rating should have been higher.

2.  It is acknowledged that the applicant’s severance pay is currently
being collected by the Federal government.  However, that is in accord with
the law that states disability severance pay received shall be deducted
from any compensation for the same disability to which he becomes entitled
under any law administered by the VA.

3.  The applicant contended he had no formal hearing and no PEBLO because
his unit was in combat operations in Haiti at the time.  He contended no
one was left in the battalion rear detachment who had any experiences
relating to his
situation.  However, the applicant signed the DA Form 199 in the section
that clearly indicated he had been advised of the findings and
recommendations of the PEB and had received a full explanation of the
results of the findings and recommendations and legal rights pertaining
thereto.  If he had not received that full explanation, he did not have to
sign the form indicating he concurred with the findings and waived a formal
hearing of his case.

4.  The applicant contended the disability percentage granted was unfair
because the DA Form 199 did not specify that he had a combat-related head
injury that occurred during the Persian Gulf War and which caused him to
lose clear fluid through the nostrils, short term memory loss, dilation of
the ventricle in the brain.

5.  It is acknowledged that the applicant suffered a head injury while in
Southwest Asia.  However, there is no evidence of record to show that any
residuals from that head injury resulted in his inability to perform his
duties.  The MEB Narrative Summary indicated his chief complaint was lower
back pain.  In his commander’s performance statement, the commander noted
that the applicant was working in an office where he had to alternate
between sitting and standing up due to extreme back pain; that the
applicant was constantly taking medication for back pain; and that the
applicant’s duties were limited to paperwork because he was unable to run,
crawl, leap, push, or pull without undergoing extreme pain in the lower
back.

6.  The evidence of record shows the applicant was unfit to perform his
duties only due to back pain, and the applicant agreed with the MEB’s
findings that he was unfit due only to degenerative joint disease of the
lumbar spine.  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.  Again, there is no
evidence of record to show that any residuals from his head injury rendered
the applicant unfit to perform his duties.

7.  There is insufficient evidence to show the applicant’s condition was
severe, as defined under VASRD code 5295.  Therefore, it appears the
applicant was properly given a disability rating of 20 percent under VASRD
code 5295.  It is acknowledged that medical conditions may worsen over
time; however, the Army’s rating is dependent on the severity of the
unfitting condition at the time of separation.  The VA has the
responsibility and jurisdiction to recognize any changes in conditions over
time by adjusting a disability rating.

8.  The applicant contended that the DA Form 2173 contradicted itself
because it stated he was of sound judgment even though he had short-term
memory loss when he was admitted to the hospital.  The section of the DA
Form 2173 he referred to is meant only to describe his mental condition at
the time immediately preceding the accident, as an aid in making a line of
duty determination.  It was not meant to describe the medical consequences
of the accident.

9.  The rating action by the VA does not necessarily demonstrate an error
or injustice in the Army rating.  The VA, operating under its own policies
and regulations, assigns disability ratings as it sees fit.  The VA is not
required by law to determine medical unfitness for further military service
in awarding a disability rating, only that a medical condition reduces or
impairs the social or industrial adaptability of the individual concerned.
Consequently, due to the two concepts involved (i.e., the more stringent
standard by which a Soldier is determined not to be medically fit for duty
versus the standard by which a civilian would be determined to be socially
or industrially impaired), an individual’s medical condition may be rated
by the Army at one level and by the VA at another level, or one condition
may be rated by the VA yet not found to be unfitting by the Army.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 May 1995; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 2 May 1998.  The applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds___  __jcr___  __swf___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  __Linda D. Simmons__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013272                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070405                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |108.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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