IN THE CASE OF:   	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20070010773 


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, through counsel, in effect, that his discharge be changed to a permanent medical retirement.

2.  The applicant, in effect, has deferred to counsel for presentation of his request.

3. In support of his request, the applicant provides, through counsel, a one-hundred and five page bound "packet" of evidence which includes the applicant's Application for Correction of Military Record, DD Form 149; a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty; a variety of correspondence to various individuals, including Members of Congress; correspondence addressed to him from the Department of Veterans Affairs (VA); clinical summaries; extracted downloads from the internet which reflect on case law; the results of a medical evaluation boards (MEBD), the results of physical evaluation boards (PEB), both formal and informal; and correspondence between the applicant and the U.S. Army Physical Disability Agency (USAPDA).  Some of the documents included in the applicant's "packet" are duplicates and in some cases, triplicates.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's discharge be declared void, that it be amended to be a transfer to permanent medical retirement and that the disability percentage be 100 percent.

2.  Counsel states, in effect, that the Army was in complete error in releasing the applicant from active duty with a disability of 20 percent.  His MEBD was in error in limiting his diagnosis as indicated.  His formal PEB was similarly in error in not finding additional diagnoses and approving a 20 percent disability.  He adds that the applicant's diagnoses have finally been totally confirmed by the VA and that a United States Supreme Court case has clearly held that his VA records are part of his service records.

3.  Counsel provides those documents that were provided him by the applicant and which are contained in the bound "packet" of evidence.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant entered active duty service on 19 September 1989.  He continued his active duty service through the period of his initial enlistment and reenlistments from 19 September 1989 through 19 January 1993, 20 January 1993 through 24 September 1996, and 25 September 1996 through 6 August 2004.  The applicant was trained in and served in military occupational specialty (MOS) 63B, Light Wheel Vehicle Mechanic.

3.  The applicant was honorably discharged in the rank and pay grade of Staff Sergeant, E-6, on 6 August 2004, under the provisions of Army Regulation 635-40, paragraph 4-24b(3), for disability with severance pay.  The applicant was given disability severance pay in the amount of $77,372.40.  On the date of his discharge, the applicant had completed 14 years, 10 months, and 18 days active military service, with no time lost.

4.  On 23 August 2002, the applicant was medically air evacuated from Germany for a 2-week period for treatment and determination if an MEBD was indicated in his case.  At the time he was medically air evacuated to Walter Reed Army 
Medical Center, the applicant was experiencing chronic fatigue, muscle pain, intermittent spasms in the back, arms, hands, neck and legs; insomnia; depression; hypercholesterolemia; exertional dyspnea; and elevated CPK level.

5.  On 9 January 2004, the applicant appeared before an MEBD, for an evaluation of his diagnosed musculoskeletal pain syndrome, with features of Fibromyalgia; Obstructive Sleep Apnea; mood disorder due to a general medical condition; short term memory loss; Diabetes Mellitus, Type II; hypertension; Mild restrictive lung disease; Hypercholesterolemia; bilateral Tinnitus; and a mild compression fracture.  The applicant did not present views in his own behalf.  After consideration of clinical records, laboratory findings, and physical examination, the MEBD found that all the applicant's diagnosed medical conditions were found to be medically acceptable, with exception of the diagnosed musculoskeletal pain syndrome, with features of Fibromyalgia; his Obstructive Sleep Apnea; and the mood disorder due to a general medical condition.  The MEBD recommended that the applicant be referred to a PEB.

6.  When the applicant was referred to the PEB, he indicated that he did not desire to continue on active duty under Army Regulation 635-40.  The MEB determined that continuance on active duty under the provisions of Army Regulation 635-40 was medically contraindicated.  The findings and recommendation of the board was approved on 9 January 2004.  On 14 January 2004, the applicant agreed with the findings and recommendations of the MEB.

7.  The evidence shows that on 3 February 2004, the applicant appeared, with counsel, before an informal PEB, for an evaluation of his diagnosed musculoskeletal pain syndrome, with features of Fibromyalgia.  Before the applicant's case was considered by the PEB, a determination was made that diagnoses 2 through 10 [listed on the DA Form 3947 (MEBD Proceedings) dated
9 January 2004], were not unfitting and therefore, were not rated.  The formal PEB considered only the applicant's musculoskeletal pain syndrome, with features of Fibromyalgia.  Based on a review of the medical evidence of record, the PEB concluded that his medical condition prevented his performance of duty in his grade and specialty.  The board found the applicant was physically unfit and recommended a combined rating of 20 percent and that the applicant be separated with severance pay, if otherwise qualified.  On 12 February 2004, the applicant nonconcurred with the PEB's findings and recommendation and demanded a formal PEB and to be represented by regularly appointed counsel.

8.  The evidence shows that on 31 March 2004, the applicant appeared, with counsel, before a physical evaluation board, for an evaluation of his diagnosed musculoskeletal pain syndrome, with features of fibromyalgia.  Based on a 
review of the medical evidence of record, the PEB concluded that his medical condition prevented his performance of duty in his grade and specialty.  The board found the applicant was physically unfit and recommended a combined rating of 20 percent and that the applicant be separated with severance pay, if otherwise qualified.  On 31 March 2004, the applicant's counsel and the President of the PEB, after having reviewed the transcript of the formal hearing, authenticated the record of proceedings to indicate that it was both accurate and complete.  On 14 April 2004, the applicant did not concur with the findings and the recommendations.

9.  On 12 April 2004, the applicant submitted a rebuttal to the outcome of the PEB.  In his rebuttal, he stated that he had been officially diagnosed with the following illnesses:  Fibromyalgia; Obstructive Sleep Apnea; Anxiety/Depression; right shoulder pain; low back pin; head tension; Tinnitus; Hypercholesterolemia; elevated Creatinine Phosphokinase (CPK); sleep disorder; memory disorder; Arthralgias; Diabetes, Type II; Plantar Fasciitis; atypical chest pain; history of mild left ventricular concentric hypertrophy; and a history of bronchitis.  He added that doctors told him he could be suffering from PTSD (Post Traumatic Stress Disorder) and had been seen by mental health experts for the condition.  He summarized his rebuttal by stating, in effect, that the PEB was not being fair in their fact-finding process to offer him a 20 percent disability.  Before service he had no medical conditions.  He was 100 percent healthy and he deserved the fair, unadulterated treatment he was being denied.  He asked the PEB to reconsider because he deserved the retirement he had worked hard and long for.

10.  On 15 April 2004, the President, of the PEB replied to the applicant's statement of rebuttal.  In his reply, the President of the PEB stated, in effect, that all documentary evidence and his list of diagnosed illnesses had been reviewed; however, no new substantive medical evidence, not previously considered by the PEB, had been submitted.  The PEB therefore affirmed its decision of having found him with a 20 percent disability rating.  He was advised that his entire case file was being forwarded to the USAPDA for review and he would be notified of any changes.

11.  On 1 May 2004, the Chief, Operations Division, USAPDA, notified the applicant that his disagreement with the PEB's findings had been noted; however, the Agency had concluded that his case had been properly adjudicated and had correctly applied the rules that governed the Physical Disability Evaluation System (PDES) in making its determination.

12.  The Chief, Operations Division, USAPDA, informed the applicant that the PEB's findings and the recommendation were supported by substantial evidence and were therefore affirmed.  The applicant was advised that he could be eligible for medical care through the VA if they determined his illness or injury was service-connected; furthermore, he could apply to the VA for a disability rating for any of the service-connected illness or injuries.

13.  The Chief, Operations Division, USAPDA, concluded his comments by advising the applicant that the PDES operated under a different set of laws than the VA.  The PDES can compensate Soldiers for any service-connected or permanently aggravating condition that caused their separation and only for the degree of impairment that existed at the time of their separation.

14.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in AR 40-501, Chapter 3.  If the Medical Evaluation Board (MEBD) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).

15.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

16.  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/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

17.  Department of Defense Directive 1332.18, Part 7, Final Disposition, paragraph E, Disposition of Unfit Members, provides for the permanent disability retirement of members who have at least 20 years of active service or whose total disability rating is at least 30 percent (emphasis added).



18.  The VA can evaluate a veteran throughout his or her lifetime and adjust the individual's 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.

19.  Title 38, United States Code, sections 310 and 331, permits the 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 (emphasis added).  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 employability.  

20.  Accordingly, it is not unusual for the Army and the VA, two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  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 (emphasis added). Confusion arises from the fact that different rating systems are used by the Army and the VA.  While both use the Veterans Administration Schedule for Rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability (emphasis added).

DISCUSSION AND CONCLUSIONS:

1.  The applicant appeared before an MEBD, for an evaluation of his diagnosed musculoskeletal pain syndrome, with features of fibromyalgia; Obstructive Sleep Apnea; mood disorder due to a general medical condition; short term memory loss; Diabetes Mellitus, Type II; hypertension; Mild restrictive lung disease; Hypercholesterolemia; bilateral Tinnitus; and a mild compression fracture.  After consideration of clinical records, laboratory findings, and physical examination, the MEDB found that all the applicant's diagnosed medical conditions were found 

to be medically acceptable, with exception of the diagnosed musculoskeletal pain syndrome, with features of fibromyalgia; and the mood disorder due to a general medical condition.  The MEBD recommended that the applicant be referred to a PEB.

2.  The applicant appeared before an informal and a formal PEB for evaluation of his diagnosed musculoskeletal pain syndrome, with features of fibromyalgia

3.  Based on a review of the medical evidence of record, both PEBs concluded that his medical condition prevented his performance of duty in his grade and specialty.  The board found the applicant was physically unfit and recommended a combined rating of 20 percent and that the applicant be separated with severance pay, if otherwise qualified.

4.  The applicant submitted a rebuttal to the findings and the recommendation.  After review of the applicant's rebuttal, the PEB affirmed its findings.  The applicant's case was submitted to the USAPDA for its review.  The USAPDA notified the applicant that his disagreement with the PEB's findings had been noted; however, the USAPDA concluded that the PEB had properly adjudicated and had correctly applied the rules that governed the PDES in making its determination.  The applicant was informed that the PEB's findings and the recommendation were supported by substantial evidence and therefore the USAPDA affirmed the PEB's findings and recommendations.

5.  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.

6.  The VA has neither the authority nor the responsibility for determining physical fitness for military service.  Federal statute permits the VA to award individuals compensation for disabilities which were incurred in or aggravated by active military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affects the individual’s employability.  The VA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability.

7.  Under the PDES, the Army rates only conditions determined to be physically unfitting and its actions are 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.  It is not unusual for the Army and the VA, two agencies of the Government, operating 
under different policies, to arrive at a different disability rating based on the same 
impairment.  An award of a higher VA rating than that awarded an individual by the Army or another military service does not establish error or injustice in the rating.  Confusion arises because both use the Veterans Administration Schedule for Rating Disabilities (VASARD), but the VA and the Army use different rating systems.  In addition, not all of the general policy provisions set forth in the VASARD apply to the Army.

8.  In view of the foregoing, there is no basis for granting the applicant's request for a medical discharge.

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 that 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)                                         AR20070010773



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ABCMR Record of Proceedings (cont)                                         AR20070010773



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