IN THE CASE OF:
BOARD DATE: 24 July 2008
DOCKET NUMBER: AR20080007633
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 separation with disability severance pay be changed to physical disability retirement.
2. The applicant states that a private physician and the Department of Veterans Affairs (VA) found complications and greater disabilities as the result of surgery. He wants the rating changed to greater than 30 percent.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a VA status report, dated 11 January 2008; and the 25 October 2007 Physical Evaluation Board (PEB) Proceedings.
CONSIDERATION OF EVIDENCE:
1. The applicant served on active duty in the Regular Army from 13 September 2000 to 20 December 2003. He affiliated with the Michigan Army National Guard in September 2004 and was mobilized on 29 May 2006.
2. A 13 March 2006 medical record indicates that the applicant had arthroscopic surgery in September 2005 which revealed degenerative changes to the right knee.
3. In February 2007 he underwent the surgical removal of the disc between the 5th lumbar (L5) and 1st sacral (S1) vertebrae. The applicant reported continued severe back and leg pain.
4. The applicant rejected the finding of an informal PEB and demanded a formal hearing. At the 8 November 2007 formal hearing, the PEB considered the available evidence, including medical imaging that failed to show nerve compression and normal neurological tests, as well as the applicant's testimony about continued back pain. The PEB rated the applicant's back condition at
10 percent disabling.
5. The applicant also testified about right knee pain; however, but an examination showed a normal gait, a full range of motion, and good stability. The PEB considered the knee condition unfitting and ratable at zero percent. The U.S. Army Disability Agency (USAPDA) noted the applicant's nonconcurrence with the PEB recommendation but affirmed the PEB's findings and recommendation.
6. On 26 December 2007 the applicant was separated with an honorable discharge due to physical disability with severance pay.
7. Subsequently, a VA magnetic resonance imaging (MRI) report for the VA noted additional defects at the S1 level in the applicant's back and recommended surgical intervention.
8. 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.
9. 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.
10. Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.
11. Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.
DISCUSSION AND CONCLUSIONS:
1. The fact that the VA, in its discretion, may award the applicant a higher disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish greater physical unfitness for Department of the Army purposes.
2. There is no available evidence that the applicant's disability was improperly rated. His separation with severance pay was in compliance with law and regulation.
3. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must rate unfitness for duty at the time of separation.
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
___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) AR20080007633
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ABCMR Record of Proceedings (cont) AR20080007633
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