IN THE CASE OF:	  

	BOARD DATE:	  17 JULY 2008

	DOCKET NUMBER:  AR20080005957 


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 reconsideration of her request for retirement by reason of physical disability with at least a 30% disability rating that was denied by the Board in case number AC-95-06112 on 27 February 1997.  

2.  The applicant states, in effect, that she believes that the previous Board erroneously accepted the Department of Veterans Affairs (VA) original rating decision of 20 September 1993 as opposed to the actual effective date of the VA’s rating for major depression of 24 November 1992, which is the day following her discharge.  She goes on to state that the original cover letter regarding her denial in 1997 indicated that she could request reconsideration if she could present new and relevant evidence; however, there was no mention of a time limitation.  In addition, she should receive reconsideration due to the inadequate representation by her counsel and the lack of due process she was given because her counsel did not adequately represent her.  She also states that she has also been diagnosed with Attention Deficit Hyper Disorder and Bi-Polar Disorder and had her representative been anything other than deficient, defective and incompetent, her case may well have had a different outcome.

3.  The applicant provides a DD Form 149 dated 9 February 2006 with a supporting statement, a copy of the Board’s previous denial of his case, a copy of her original VA Rating Decision and a copy of the Advisory Opinion from the Physical Disability Agency (PDA). 



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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC95-06112, on 27 February 1997.
  
3.  The applicant was born on 23 February 1948 and enlisted in the Regular Army on 2 May 1978.  She remained on active duty through a series of continuous reenlistments in both air defense artillery and military intelligence military occupational specialties (MOS).  She was promoted to the pay grade of E-6 on 20 March 1985.   

4.  In July 1989, while assigned to Germany, she was involved in a car accident and suffered injuries to her neck and right shoulder.  She was assigned a permanent profile (P3) and in December 1990, she began to be treated for stress and depression. 

5.  The applicant appeared before a MOS Medical Review Board (MMRB) and was referred to a Medical Evaluation Board (MEB). 

6.  On 31 March 1992, a MEB convened and diagnosed the applicant as having neck and shoulder pain.  The MEB recommended that the applicant be referred to a Physical Evaluation Board (PEB).  The applicant agreed with the board findings and recommendation on 6 April 1992.   However, on 22 July 1992, the MEB prepared an addendum which changed her diagnoses to Dysthymia, major depression, single episode and Rule out somotaform pain disorder. 

7.  On 24 April 1992, a Physical Evaluation Board (PEB) convened at Fort Gordon, Georgia and determined that the applicant should be returned to duty as fit.  The applicant did not concur with the findings and recommendations and demanded a formal hearing. 

8.  On 17 July 1992, a Physical Evaluation Board (PEB) convened at Fort Gordon, Georgia.  The PEB diagnosed the applicant as having Pain, right neck and shoulder.  After considering her records and testimony, the board determined that she was unfit to reasonably perform the duties of her rank and military occupational specialty (MOS) because of her myofascial pain syndrome affecting her neck and right shoulder.  The board recommended that she be discharged with severance pay at a 10% disability rating.

9.  On 20 August 1992, a Physical Evaluation Board again convened after having received a medical addendum dated 22 July 1992, to reconsider her case.  The PEB diagnosed the applicant as having major depression, rated as mild impairment for social and industrial adaptability (10%) and pain, right neck and shoulder, rated as myofascial pain) 10%.  The applicant did not concur with the percentage she had been assigned and contended that she should receive at least a 30% disability rating.

10.  On 23 November 1992, the applicant was honorably discharged in Germany, where she had requested an in-country separation, under the provisions of Army Regulation 635-40 due to physical disability with severance pay.  She had served 14 years, 6 months and 21 days of total active service.

11.  On 5 January 1993, the applicant filed a claim for disability with the Department of Veterans Affairs (VA) and on 20 September 1993, the VA rated the applicant as having major depression (30%), right shoulder impingment, adhesive capsulitis with degenerative changes (major) (30%) and chronic lumbar strain (10).  She was assigned a combined disability rating of 60% on 20 September 1993 that was made retroactive to 24 November 1992.

12.  The applicant applied to this Board on 14 February 1995 contending that because the VA had assigned her a 60% disability rating the day following her discharge, the PEB should have assigned her at least a 30% disability rating.  She also named a service organization as her counsel.  The applicant’s counsel was notified to review the applicant’s case and her records and failed to submit any comments to the Board.

13.  However, in the processing of the case a staff advisory opinion was obtained from the Army Physical Disability Agency.  Officials at that agency opined that there were no errors or injustices in the processing of the applicant’s case and explained that in the applicant’s case, there was no evidence that socially she could not adapt or interact.  While she did have some mild/minimal problems with industrial ability, i.e. ability to work effectively, that condition was certainly mild at the time of the PEB and had only temporarily escalated because of the stress of that immediate moment of being found unfit for duty.  Officials at that agency also opined that the PEB’s findings and recommendations were supported by substantial evidence, were not contrary to law or regulation, and were not arbitrary or capricious.  The PDA recommended that he case be denied.

14.  On 26 February 1997, the Board reviewed the applicant’s case with all of her enclosures, to include her VA Rating decision showing the effective date of her rating and her official records and determined that there was no error or injustice in her case.  The Board voted unanimously to deny her case.

15.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides that the mere presence of an 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 member may reasonably be expected to perform because of his or her office, rank, grade or rating.  

16.  Title 38, United States Code, sections 310 and 331, 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.  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.

17.  There is a difference between the Department of Veterans Affairs (VA) and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.    




DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that she should have been rated at 30% or higher by the PEB because the VA assigned her a 60% disability rating the day following her discharge has been noted and found to lack merit.  The fact that the VA assigned her a higher disability rating does not constitute error or injustice on the part of the Department because they are two separate systems that have two different parameters for determining disability.  The Board was also aware of the effective date of the VA’s rating at the time it reviewed her original application.   

2.  The PEB considered the applicant’s argument at the time that she contended that she should have been rated at 30% or greater and could find no evidence to support a higher rating at the time the PEB convened.  Accordingly, she was discharged in accordance with the applicable laws and regulations in effect at the time, with no violations of any of her rights.    

3.  The applicant’s contention that she was denied due process because her counsel did not properly represent her to the Board has been noted and found to lack merit.  The fact that counsel does not make any comments in a case has no negative impact on the decision of the Board because ultimately, the responsibility for presenting a case rests solely with the applicant.  The fact that an applicant may rely on counsel to present their views or that counsel does not articulate their views properly does not change that fact.  

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 this requirement.              

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080005957





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ABCMR Record of Proceedings (cont)                                         AR20080005957



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