IN THE CASE OF:	  

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080005409 


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, in effect, that his honorable discharge with disability severance pay be changed to disability retirement.  

2.  The applicant states, in effect, that he was given a combined disability rating of 10% by the Army Physical Evaluation Board (PEB).  He was assessed by the Department of Veterans Affairs (VA) and rated at 30% service-connected disability.  This rating meets the requirement under Army Regulation 635-40 for disability retirement.

3.  The applicant provides the VA decision rating, dated 11 July 2001; a VA certification letter, dated 26 December 2001; a copy of the PEB proceedings, dated 16 June 2000; a copy of his heart readings, dated 28 January 1997; a certificate of appreciation, dated 11 March 2002; and the Medical Evaluation Board (MEB) summary, dated 27 April 2000.

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's record shows that after having served in the United States Army Reserve (USAR), the applicant entered active duty in the Regular Army in an enlisted status on 24 May 1984.  It further shows he was appointed a Reserve commissioned officer on 16 October 1987, and remained on active duty in that status.  The record further shows he was promoted to Major pay grade O-4 on 
1 December 1998.  

3.  On 14 March 2000, a Report of Medical Examination (Standard Form (SF) 88) completed on the applicant shows the applicant was found to be abnormal in the clinical evaluation areas of the Heart.  The form noted the applicant had a heart pacemaker implanted in 1997 and that the applicant was qualified for an MEB.   

4.  On 2 May 2000, an MEB convened at Walter Reed Army Medical Center, Washington D.C, and determined the applicant was diagnosed with a syncope or near syncope of the cardiovascular etiology (Medically Unacceptable, in accordance with (IAW) Army Regulation 40-501).  The MEB referred the applicant's case for evaluation by a PEB.  

5.  On 15 May 2000, the applicant concurred with the MEB’s findings and recommendation.

6.  On 10 June 2000, a PEB convened at Walter Reed Army Medical Center, Washington D.C., to consider the applicant's case.  Based on a review of the medical evidence of record, the PEB found that the applicant's medical condition prevents satisfactory performance of duty in his grade and primary specialty.  The PEB found the applicant unfit and recommended a combined rating of 10% and that the applicant be separated with severance pay.  On 6 July 2000, the applicant concurred with the PEB’s findings and recommendation and waived a formal hearing of his case. 

7.  On 31 October 2000, the applicant was honorably discharged under the provisions of Army Regulation 635-40; Paragraph 4-24b(3), by reason of disability with severance pay.  The separation document (DD Form 214) he was issued at the time shows he completed a total of 16 years, 2 months, and 3 days of active military service.    



8.  On 11 July 2001, the VA granted the applicant service-connected disability for migraine headaches at 10%; neurocardiogenic syncope, status post-pacemaker implant at 10%; and status post-right ankle fracture at 10%, for an overall rating of 30% for service-connected disability. 

9.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

10.  Paragraph 3-5 of the PDES regulation contains guidance on rating disabilities. It states, in pertinent part, that 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.  

11.  Title 38, United States Code, sections 1110 and 1131, permits the Department of Veterans Affairs (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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change his honorable discharge to a disability retirement was carefully considered.  However, there is insufficient evidence to support this claim.
2.  The evidence of record confirms the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met, and the applicant's rights were fully protected throughout the PDES process.  It further shows that the PEB ultimately determined the applicant was unfit for service, and granted him a 10% disability rating with severance pay.  The PEB recommended the applicant's discharge by reason of disability with severance pay, and the applicant concurred with the findings and recommendation of the PEB.

3.  The VA may rate any service-connected impairment, thus compensating for loss of civilian employment.  It may also award 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.  It can also evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, any change in the disability rating granted by the VA would not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army’s PDES.  

4.  The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  As a result, the applicant was properly compensated with severance pay at the time of his discharge, and he is now properly being rated, treated, and compensated for all of his service-connected conditions by the VA.

5.  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 this requirement.

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)                                         AR20080005409



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ABCMR Record of Proceedings (cont)                                         AR20080005409



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