RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  3 July 2007
	DOCKET NUMBER:  AR20060014217 


	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.  


Mrs. Catherine C. Mitrano

Director

Mrs. Phyllis M. Perkins

Analyst


The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Scott W. Faught

Member

Ms. Ernestine L. Fields

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, corrections of his records to show a higher disability rating at the time he was released from active duty.  

2.  The applicant states that he was medically boarded and was given a 10 percent disability rating.  The applicant further states that he was discharged from active duty for disability and that he was not fairly boarded and compensated for the injuries he received while on active duty in Iraq.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), United States Army Human Resources Command (Alexandria, VA) Memorandum, a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), and a DA Form 199 (Physical Evaluation Board (PEB) Proceedings) in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  On 24 January 2003, the applicant's was ordered to active duty as a member of a Reserve Component Unit for a period of one year.  The applicant was honorably released from active duty on 9 May 2006 and transferred to the United States Army Reserves Control Group (Retired Reserves).

2.  On 10 March 2006, a MEB diagnosed the applicant with left shoulder impingement syndrome [inflammation of the tendons of the shoulder], acromioclavicular joint arthrosis [degenerative disease of the joint between the shoulder blade and collar bone], adhesive capsulitis of the left shoulder [frozen shoulder], cervical spondyloysis [abnormal wear on the cartilage and bones of the neck], cervical stenosis [degenerative changes in the joints that can create tightening of the spinal canal], bilateral plantar fasciitis [heel spur syndrome], diabetes mellitius, cervical radiculopathy, hypertension, hypertensive heart disease, erectile dysfunction, hyperlipidemia, pre-glaucoma, and post traumatic stress syndrome. 

3.  The MEB found that the applicant's condition was stable and due to his medical history the chances of him returning to full active duty were small.  The MEB referred the applicant's case to a PEB for evaluation. 

4.  On 15 March 2006, the applicant's case was evaluated by a PEB convened at Fort Sam Houston, Texas.  The PEB found that the applicant was physically unfit based on his diagnosed condition of chronic pain, left (dominant) shoulder.  The PEB assigned a disability rating of 10 percent and recommended the applicant be separated with severance pay. 

5.  On 27 March 2006, the applicant did not concur with the PEB findings, however, he waived his right to request a formal hearing.  The applicant elected to make a written rebuttal to the PEB decision but elected not to attach the rebuttal.  The applicant acknowledged that he understood that failure to submit a written appeal may result in final processing of his case without review by the Headquarters, United States Army Physical Disability Agency.   

6.  The applicant's service personnel records do not contain a copy of his rebuttal to the informal PEB.

7.  The applicant's records contain a memorandum, dated 27 March 2006, from a colonel, serving as the President of the PEB (Fort Sam Houston).  The colonel sent the memorandum addressed to the applicant through the PEB liaison office.  In this memorandum the colonel stated that the PEB had reviewed the applicant's rebuttal to the informal PEB findings.  The colonel further stated that after careful consideration the PEB found that the applicant's rebuttal contained no new objective medical or performance evidence which would warrant changes to the original findings.  The colonel concluded that the applicant's case was being forwarded to the United States Army Physical Disability Agency for final processing as established by Army Regulation 635-40 (Physical Evaluation for Retention Retirement or Separation).  

8.  On 27 March 2006, the applicant elected to be transferred to the Retired Reserve pursuit to Title 10 USC 1209, with entitlement to apply for retirement benefits upon reaching the age of sixty (60.)  The applicant indicated that he understood that the election was final and conclusive for all purposes and may not be changed.

9.  A memorandum dated 25 April 2006, from the Chief of the Mobilization Support Branch, United States Army Human Resources Command at Alexandria, Virginia, showed that the request for Release from Active Duty (REFRAD) for the applicant was approved.  The Chief of the Mobilization Support Branch further stated  that the applicant was found to be unfit by reason of physical disability by a PEB and would be released from active duty under the provisions of Army Regulation 635-40, paragraph 4-24b(5) and paragraph 8-9a(3).




10.  The applicant's DD Form 214 shows the applicant was honorably released from active duty under the provisions of Army Regulation 635-40, paragraph 
4-24b for disability on 9 May 2006 and transferred to the United States Army Control Group (Retired Reserves).  This form also shows the applicant completed 3 years, 3 months, and 16 days of active military service. 

11.  In processing this case, a staff advisory opinion was obtained from the Deputy Commander of the United States Army Physical Disability Agency, (Washington, DC) dated 16 April 2007.  In the advisory opinion, the Deputy Commander reiterates the background information (Significant Dates and Events) for the applicant's MEB and PEB.  The Deputy determined that based upon the preponderance of evidence, the findings were not arbitrary or capricious, and the findings were not in violation of any statutes, directives, or regulations.  In view of foregoing, the Deputy Commander recommended the applicant's military records remain unchanged.

12.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth the 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, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  

13.  Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (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 civilian 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. 

14.  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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected by increasing his disability rating based on injuries sustained in Iraq.

2.  The evidence shows the applicant did not concur with the findings and recommendations of the PEB; however, he waived his rights to request a formal hearing.  The PEB subsequently determined that the rebuttal submitted by the applicant did not contain any new objective medical evidence or performance evidence which would warrant changes to the original findings. 

3.  On 27 March 2006, the applicant voluntarily elected to be transferred to the Retired Reserve with entitlement to apply for retirement benefits upon reaching age 60.  The evidence of record confirms the applicant was properly processed through the Physical Disability Evaluation System in accordance with the applicable laws and regulations.

4.  An award of a higher VA rating does not establish error or injustice in an Army disability 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 civilian 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.

5.  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 that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

6.  Based on the foregoing, there is no basis for changing the applicant's disability rating by the Army in this case.   The VA may reevaluate the applicant, if necessary, as his condition changes.

7.  In order to justify correction of a military record the applicant must show, 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ENA_____  _EF___  __SWE__  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.





____Eric N. Andersen_____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
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.

2.

3.

4.

5.

6.