RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 May 2008
	DOCKET NUMBER:  AR20070012513 


	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.  




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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, that his discharge from the Selected Reserve for being medically unfit for retention be changed to a medical retirement due to a service-connected disability.

2.  The applicant states that before his informal Physical Evaluation Board (PEB) he went to the Department of Veterans Affairs (VA) for an evaluation.  The VA granted him a service connection disability combined rating of 60 percent, which he furnished to the PEB as evidence of his ongoing medical issues.  The VA noted that his condition was permanently worsened by military service.  That is consistent with Department of Defense policy that if the condition’s natural progression is hastened by military service, then the Soldier is entitled to disability or retired pay.  

3.  The applicant states that he discovered four months after his discharge that   a Soldier with less than 20 years of active Federal service qualifies for disability/medical retirement if his/her disability rating is 30 percent or higher.  The informal PEB granted him no disability rating, nor did it provide an explanation as to how they arrived at their decision.  He was kept totally in the dark as to what his rights were as a Soldier who was about to be medically separated as well as to what benefits, if any, he would retain after separation.  He erroneously concurred with the PEB’s informal findings and recommendations.  He did not understand that he could request a formal hearing, with or without personal appearance, which is a statutory right.  The only finding he understood was the PEB’s determination that he met certain eligibility requirements towards a Reserve retirement.  He had over 15 qualifying years and had been found unfit for retention.  

4.  The applicant provides a memorandum, dated 5 October 2006, from the Washington Army National Guard (WAARNG); his notification of eligibility for retired pay at age 60 (a Selected Reserve 15-year letter); and a VA Rating Decision, dated 22 June 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 16 September 1972.  He served in the Regular Army from 29 October 1991 through 18 October 1995 and in the ARNG from    19 October 1995 through 30 October 1996.  He enlisted in the Regular Army on 31 October 1996.

2.  Service medical records show that the applicant was treated in June 1998 for a complaint of neck pain after a motor vehicle accident.  He had been wearing a seat belt on the passenger side of the vehicle.  He was diagnosed with upper trapezius muscle spasm.  

3.  Service medical records show that the applicant was treated in March 2000 for a complaint of neck and back pain after he fell off an obstacle (apparently on an obstacle training course) and fell on his head.  No neck injury was noted, just stiffness.  

4.  On 22 June 2001, the applicant was honorably discharged.  On 23 June 2001, he enlisted in the ARNG.  

5.  On 15 November 2003, the applicant was ordered to active duty and deployed to Iraq.

6.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows that on 21 January 2005 the applicant strained his trapezius muscle due to the excess weight of wearing his Interceptor Body Armor (IBA), combat ammunition load, and Kevlar helmet while performing duties.

7.  The applicant departed Iraq on 16 March 2005 and was released from active duty on 3 May 2005.

8.  The applicant was ordered to active duty for special work (ADSW) for redeployment support with a report date of 4 May 2005 (although his DD Form 214 for this period shows he entered active duty on 23 May 2005).  This period  of ADSW was to end on 30 September 2005.  His orders were later amended to end his ADSW on 25 September 2005.  

9.  A memorandum, dated 24 August 2005, from Madigan Army Medical Center indicated the applicant was evaluated in the Neurology Clinic on 6 July 2005.  A magnetic resonance imaging (MRI) revealed a loss of the lordotic curvature consistent with muscle spasm.  Minimal foraminal narrowing was seen at C5-C6 and C4-C5 due in part to hard disc protrusions bilaterally at those levels.  Lesser changes were seen at C6-C7.

10.  On 12 September 2005, the applicant completed a DD Form 2697 (Report of Medical Assessment).  He noted that he had been suffering since his last medical assessment/physical examination from recurrent neck and upper back pain from two previous neck injuries, which were exacerbated while serving in Iraq.  He stated he experienced constant pain in both his neck and upper back and he had great difficulty lifting heavy loads.  

11. The applicant was ordered to ADSW for Hurricane Rita Recovery Operations from 26 September through 29 October 2005.  

12.  The applicant was released from active duty on 31 October 2005.

13.  On 27 June 2006, the VA awarded the applicant a combined disability rating of 60 percent for post-traumatic stress disorder (PTSD) (30 percent); cervical spine degenerative arthritis (20 percent); radiculopathy into the left upper extremity (20 percent); tinnitus (10 percent); and thoracic spine degenerative arthritis (zero percent).

14.  By memorandum dated 5 October 2006, the applicant was notified that a Medical “Fitness for Duty” evaluation on his current condition determined that he was medically disqualified for continued service in the WAARNG.  He was informed that if he rebutted that decision, he could request further evaluation by a Non-duty Related PEB.  He did not rebut the decision.  

15.  On 5 November 2006, the applicant was discharged from the ARNG in the rank and grade of Specialist, E-4 due to being medically unfit for retention and was transferred to the Retired Reserve.  He had completed 15 years, 3 months, and 25 days of qualifying service.

16.  On 25 January 2007, the applicant was issued a notification of eligibility for retired pay at age 60 (based upon being medically unfit for retention in the Selected Reserve with at least 15 but less than 20 years of qualifying service).  

17.  In the processing of this case an advisory opinion was obtained from the     U. S. Army Physical Disability Agency.  That Agency stated that the applicant was never referred to a Medical Evaluation Board (MEB) or to a PEB; therefore, no error or injustice was committed by that Agency.  If a determination is made that the conditions that caused his separation were caused by his military service, medical experts at the Office of The Surgeon General would have to determine if the conditions did not meet medical retention standards.

18.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

19.  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.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or the proximate cause was while performing active duty or inactive duty training.

20.  Army Regulation 600-8-1 (Army Casualty Program), in pertinent part, provides that a line of duty investigation must be conducted in all cases of injury not a result of enemy action.  It states it is essential to arrive at a determination as to whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree.  Depending on the circumstances of the case, an investigation may or may not be required to make this determination.  It states any physical condition having its inception in line of duty during one period of service or authorized training in any of the Armed Forces which recurs or is aggravated during later service or authorized training, regardless of the time between, should be in line of duty.  

21.  Army Regulation 635-40 states, in pertinent part, that when a commander or other proper authority believes that a Soldier not on extended active duty is unable to perform the duties of his or her grade or rank because of physical disability, the commander will refer the Soldier for medical evaluation according to Army Regulation 40-501.

22.  Army Regulation 635-40 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.  

23.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states that Reserve Component Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  The process was designed to give the Soldier with a non-duty related impairment the option of requesting a PEB solely for the purpose of fitness determination but not a determination of eligibility for disability benefits.

24.  Title 10, U. S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of active service and a disability rated at less than 30 percent.  Section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

25.  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.  

26.  Title 10, U. S. Code, section 1212(c) states that the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the VA.  Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

27.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U. S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty).  Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.  

28.  Title 38, U. S. Code, sections 1110 and 1131, 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.  

29.  The VA Schedule for Rating Disabilities (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.  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.

30.   Department of Defense Instruction (DODI) 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities) notes that the VASRD percentage ratings represent, as far as can practicably be determined, the average impairment in civilian occupational earning capacity resulting from certain diseases and injuries.  However, not all the general policy provisions of the VASRD are applicable to the Military Departments.  Many of the policies were written primarily for VA rating boards and are intended to provide guidance under laws and policies applicable only to the VA.  This Instruction replaces some sections of the VASRD.

DISCUSSION AND CONCLUSIONS:

1.  It appears that an error and/or an injustice occurred in this case.

2.  In June 1998, when the applicant was in the Regular Army, he was treated for a complaint of neck pain after a motor vehicle accident.  He was diagnosed with upper trapezius muscle spasm.  He was treated in March 2000, while he was still in the Regular Army, for a complaint of neck and back pain after he fell off an obstacle.  

3.  There is no derogatory information in the applicant’s records, such as an Article 15 or letter of reprimand that would indicate the above two accidents were the result of his misconduct.  Since the available evidence indicated the applicant had been wearing a seat belt on the passenger side of the vehicle when the accident occurred, it is unlikely that the accident was the result of any misconduct on his part.  It is unlikely that any misconduct on his part resulted in his fall off the obstacle.  Any reasonable doubt should be resolved in the applicant’s favor.

4.  Under the regulatory guidance in Army 600-8-1, line of duty investigations should have been initiated when the applicant was injured in June 1998 and March 2000.  Since there is no evidence to indicate the applicant’s injuries were the result of his misconduct or willful negligence, if a line of duty investigation had been properly initiated concerning these injuries an informal investigation would have been conducted and his initial injuries would have been determined to be in line of duty Yes.  

5.  It appears, therefore, that an error was made in determining the proper channels for the applicant’s disability processing.

6.  The applicant was not considered by an informal PEB; he was considered by a Fitness for Duty board.  Reserve Component Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  However, the only appeal option is to argue that one IS FIT for duty, not that one is MORE UNFIT for duty.  The process was designed only to give the Soldier with a non-duty related impairment the option of requesting a PEB solely for the purpose of fitness determination but not a determination of eligibility for disability benefits.

7.  The WAARNG either mistakenly processed the applicant through this channel, not connecting the fact that his neck condition might have been related to the June 1998 and March 2000 injuries, or deliberately processed him through this channel because there was no line of duty determination on his June 1998 and March 2000 injuries.

8.  Since it appears reasonable to presume the applicant’s June 1998 and March 2000 injuries would have been determined to be in line of duty, he would have been eligible for referral to an MEB to determine if he was eligible for separation under the provisions of Title 10, U. S. Code, section 1203 or section 1201.

9.  The applicant should be afforded the opportunity to have his medical fitness determined by an MEB/PEB.  He should be aware of several facts.  

10.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual 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.  Also, depending on the provisions in DODI 1332.39, the medical condition might be rated by the Army at one level and rated by the VA at another.

11.  The VA awarded the applicant a 30 percent disability rating for PTSD and a 10 percent rating for tinnitus.  There is no legal requirement for the Army, 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.  There is no evidence available to show that the applicant was unfit for military service because of PTSD or tinnitus.  An MEB/PEB might find that these two conditions were not unfitting and therefore would not rate them.  In addition, if he is found to be unfit by an MEB/PEB, his disability ratings for his conditions might be rated less than what the VA has granted him.

12.  An MEB/PEB could find the applicant to be unfit for duty but with a rating of less than 20 percent, which would entitle him to severance pay.  However, if he accepted severance pay his VA compensation would be offset by the amount of severance pay he received. 
13.  An MEB/PEB could find the applicant to be unfit for duty with a rating of       30 percent or greater, which would entitle him to retired pay.  However, since he has less than 20 years of service he could not receive both a military retirement for physical unfitness and a VA disability pension.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__xxx___  __xxx___  __xxx___   GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  showing that his June 1998 and March 2000 injuries were determined to have been incurred in line of duty; and

     b.  offering him the opportunity to undergo a physical evaluation to determine his fitness for retention in the Army:

          (1)  by directing the Office of The Surgeon General to contact him and arrange, via appropriate medical facilities, a physical evaluation; and

          (2)  if appropriate, by referral to an MEB and an informal PEB.

2.  The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the physical evaluation and, if necessary, the MEB and PEB.

3.  In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

4.  Subsequent to a final determination by the Office of The Surgeon General concerning his fitness for retention in the Army (as relates to a condition or conditions incurred while on active duty), the individual concerned may reapply to this Board concerning any other issues, as appropriate.

5.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing the individual concerned was medically retired without going through the MEB/PEB process. 




      __             XXX_____
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070012513


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508