IN THE CASE OF:	  

	BOARD DATE:	  10 June 2008

	DOCKET NUMBER:  AR20080004922 


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 that his discharge with severance pay due to physical disability be changed to a medical retirement.

2.  The applicant states that the military rated his disability at 10 percent disabling and the Department of Veterans Affairs (VA) rated his medical disability at 
70 percent.  Based on this difference in rating, he believes that the military’s decision to award severance pay was in error.

3.  The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214), VA Rating Decisions, Physical Evaluation Board (PEB) Proceedings and Medical Evaluation Board (MEB) Proceedings with associated documents, and his Enlisted Record Brief. 

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.  On 2 April 2002, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 19D (Cavalry Scout).

3.  On 28 April 2003, the applicant was assigned for duty in Iraq where he served until his return to the United States on 2 April 2004.

4.  On 1 February 2004, while still in Iraq, the applicant was promoted to specialist, pay grade E-4.

5.  On 24 January 2005, a MEB convened to evaluate the medical condition of the applicant.  It found that he had the following medical conditions: post traumatic stress disorder (PTSD), chronic, delayed type, unacceptable; and chronic ankle pain, unacceptable.   The MEB recommended that he be referred to a Physical Evaluation Board (PEB).   The applicant did not present any views on his own behalf.  He indicated that he did not desire to continue on active duty. The findings and recommendation of the MEB were approved.  The applicant agreed with the MEB findings and recommendation.  

6.  On 27 April 2005, a PEB convened to consider the applicant’s medical condition.  It found that he suffered from PTSD, arising from a number of combat situations, with repeated exposure to danger and death, manifested by sleep disturbance, easy anger and irritability and withdrawal (rated at 10 percent disabling); and from chronic right ankle pain following a sprain, limiting vigorous physical activity (rated at zero percent disabling).  The PEB found the applicant to be physically unfit and recommended a combined disability rating of 10 percent, and that he be separated with severance pay, if otherwise qualified.  The applicant concurred and waived a formal hearing.  The applicant was counseled as to his legal rights pertaining to the PEB.  Both the applicant and counselor signed the proceedings on 28 April 2005.

7.  In a VA Rating Decision, dated 15 September 2005, the VA found service connection for the applicant’s PTSD and rated it at 50 percent disabling.  It also found service connection for his right ankle stain and rated it at 10 percent disabling.  



8.  In a VA Rating Decision, dated 3 April 2006, the VA increased the applicant’s rating for PTSD from 50 to 70 percent disabling.  According to the VA Decision report, the applicant was working part time and got laid off for the winter.  He had "just been lying around the house, which made [his] symptoms worse."  

9.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides at section 1201, for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

10.  Title 38, United States Code, sections 310 and 331, permit 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.  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 physically unfit 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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence clearly shows that the applicant was medically disabled and was evaluated by an MEB and PEB.  The MEB found him medically unacceptable and referred him to the PEB.  The PEB found him unfit for military service and recommended separation with a 10 percent disability rating.  The applicant was counseled regarding his legal rights afterward he concurred and waived a formal hearing.  Therefore, he was discharged with severance pay.

2.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability.  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.
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, 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.

4.  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____  ___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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080004922



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