IN THE CASE OF:	  

	BOARD DATE:	  21 August 2008

	DOCKET NUMBER:  AR20080004236 


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 correction of his military records to show that he was retired with a physical disability rating of 100 percent. 

2.  The applicant states that the Department of Veterans Affairs (VA) rated his physical disabilities at 100 percent.  He feels that the Army should have given him the same physical disability rating.

3.  The applicant provides copies of his Appointment of Veterans Service Organization as Claimant’s Representative (VA Form 21-22) and his Report of Separation and Record of Service (NGB Form 22).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not respond. 

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 enlisted in the Army National Guard on 2 February 1989 and served in a Guard unit until 5 January 1993.  

3.  On 6 January 1993, the applicant enlisted in the Regular Army.  He held military occupational specialty (MOS) 62H (Concrete and Asphalt Equipment Operator).

4.  On 1 August 1995, the applicant was promoted to sergeant, pay grade E-5.

5.  On 5 January 1996, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Reinforcement).  He had completed 3 years of creditable active service.

6.  On 3 February 1996, the applicant enlisted in the Oklahoma Army National Guard.  On 10 August 2000, the applicant was promoted to sergeant first class, pay grade E-7.

7.  On 17 March 2001, the applicant was involved and injured in a motor vehicle accident while driving to the armory in Okemah, Oklahoma.  He was subsequently admitted to a hospital with multiple injuries.  The Line of Duty (LOD) investigation determined that the applicant’s injuries were in the line of duty.

8.  In the processing of this case an advisory opinion was obtained from the Agency Legal Advisor, United States Army Physical Disability Agency.  It states that the applicant was evaluated by a Medical Evaluation Board (MEB) on 
13 May 2003.  The MEB found that the applicant suffered from a traumatic brain injury, cognitive disorder, mood disorder, and right shoulder pain, and that as a result he did not meet medical retention standards.  The applicant concurred with the MEB findings on 15 May 2003.

9.  The advisory opinion further states that on 18 November 2003, the applicant was evaluated by a Physical Evaluation Board (PEB).  The PEB found the applicant unfit due to his cognitive and mood disorders that were the result of the traumatic brain injury.  The PEB rated his disability at 30 percent with placement on the Temporary Disability Retired List (TDRL).  The applicant’s shoulder injury was found not to be unfitting.  The applicant concurred with the PEB findings and waived his rights to a formal hearing.  On 31 December 2003, the applicant was discharged from the Oklahoma Army National Guard and transferred to the United States Army Reserve Control Group (Reinforcement) and placed on the TDRL.

10.  The advisory opinion further states that on 13 March 2006, the applicant underwent a TDRL medical re-evaluation.  He reported that he was still in treatment and on antidepressant medication.  Although his cognitive deficits had improved, it was opined that his depressive symptoms remained poorly controlled.  His condition was labeled as “definite” in regard to the applicant’s level of industrial adaptability.  It was recommended that the applicant be permanently retired.  The applicant concurred with the medical findings on 3 May 2006, except that he was no longer taking any medications.

11.  The advisory opinion states that on 11 May 2006, the PEB found the applicant unfit for his cognitive and mood disorders and continued his rating at a definite 30 percent, with permanent disability retirement.  On 18 May 2006, the applicant concurred with the PEB findings and waived his right to a formal hearing.

12.  The advisory opinion concludes by stating that a review of the applicant’s medical history revealed that the PEB properly rated the applicant at 30 percent. The applicant concurred in all aspects of his disability processing and never provided any rebuttals or additional evidence to the medical evaluations or PEB finding.  The applicant has not cited any specific error with the PEB’s findings or provided any additional evidence in his petition for correction.  The PEB’s findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.

13.  On 6 June 2008, the advisory opinion was sent to the applicant for his information and opportunity to rebut.  No response has been received.

14.  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 office, rank, grade or rating because of disability incurred while entitled to basic pay.

15.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.




DISCUSSION AND CONCLUSIONS:

1.  The available evidence clearly shows the applicant was notified that he had been found physically unfit for retention in the military, and was informed of his right to appeal.  He concurred with the PEB findings and elected not to appeal.  He was permanently retired due to physical disability.

2.  The applicant has not provided any evidence showing that the VA awarded him a disability rating of 100 percent. 

3.  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 has neither the authority nor the responsibility for determining physical fitness for military service.  The VA 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.

4.  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.

5.  In view of the above, the applicant’s request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____XX_  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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080004236



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