IN THE CASE OF:	  

		BOARD DATE:	        26 August 2008

		DOCKET NUMBER:  AR20080007936 


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 records to show he was medically retired instead of honorably separated.

2.  The applicant states that at the time of his discharge, he was rated at a 20 percent disability.  However, after completing his medical examinations at the Department of Veterans Affairs (DVA), he was awarded a 90 percent service connected disability as of the date of his discharge. 

3.  The applicant provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 10 January 2007; a copy of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 19 December 2006; and a copy of the DVA Rating Decision, dated 14 November 2007, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was initially inducted into the Army of the United states on 25 April 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantry).  He was honorably separated and transferred to the U.S. Army reserve (USAR) Control Group (Annual Training) on 16 April 1970.  

2.  The applicant's records further show he enlisted in the USAR for a period of 3 years on 22 September 1981.  He subsequently entered active duty on 17 November 1981, executed a series of extensions and/or reenlistments, held MOS 76V (Materiel Storage and Handling Specialist), attained the rank staff sergeant (SSG), and was honorably separated on 31 August 1992.

3.  The applicant's records also show he enlisted in the USAR for a period of 8 years on 1 September 1992 in the rank/grade of SSG/E-6.  He also executed an indefinite reenlistment on 17 July 2007.

4.  On 4 December 2005, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  However, he did not serve in Iraq.

5.  On 9 February 2006, the applicant was ordered retained on active duty to participate in the Reserve Component Medical Holdover Medical Retention Program for completion of medical care and treatment, for a period of 179 days (later amended to 358 days).

6.  The facts and circumstances surrounding the applicant's injury and subsequent Medical Evaluation Board (MEB) are not available for review.

7.  On 19 December 2006, a PEB convened at Walter Reed Army Medical Center, Washington, D.C., and found the applicant was physically unfit.  He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5237 for chronic cervical pain with a history of a fall from a truck and awarded a 10 percent disability percentage and chronic lumbar pain with a history of a fall, and awarded a 10 percent disability rating.  The PEB also rated the applicant under code 5010, chronic right shoulder pain and codes 5099 and 5003, chronic right wrist pain with a history of a fall from a truck, but awarded him a zero percent rating for both conditions.  Based on the review of the medical evidence of record, the PEB concluded the applicant's conditions prevented him from performing the duties in his grade and specialty.  The PEB recommended a combined disability rating of 20 percent and the applicant's separation with severance pay.

8.  On 22 December 2006, the applicant concurred with the PEB findings and recommendations and waived his right to a hearing.

9.  On 10 January 2007, the applicant was honorably discharged from the Army.  The DD Form 214 he was issued at the time shows he was discharged in accordance with paragraph 4-24B(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), for disability-severance pay, and that he completed nearly 16 years of creditable military service.


10.  On 14 November 2007, the DVA awarded the applicant a 90 percent disability compensation as follows:  50 percent for sleep apnea, 30 percent for depression disorder, 30 percent degenerative disc disease, 20 percent lumbar with degenerative disc, 20 percent right shoulder impairment with acromioclaviular joint spurring, 20 percent diabetes mellitus, Type II, and hypertension, and 10 percent right knee meniscal.

11.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

12.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years active service and a disability rated at less than 30 percent.

13.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  

14.  AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for: enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Department of Defense Instruction 1332.39 and AR 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Rating can range from 0 to 100 percent, rising in increments of 10 percent.

15.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (DVA) to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two 
Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records are void of the facts and circumstances that led to his injury.  However, it appears the applicant underwent an MEB which recommended that he go to a PEB.  The PEB found the applicant to be unfit for further military service and assigned him a disability percentage of 20 percent for chronic cervical pain and chronic lumbar pain with a history of a fall, and awarded a 20 percent combined disability rating.  His right shoulder and right wrist conditions were rated at zero percent.  The PEB recommended the applicant be separated with severance pay, if authorized.  The applicant concurred in the recommendation.

2.  The applicant now believes he should have received a greater percentage disability rating and medical retirement, but has provided no evidence to support this belief or to refute the rating received by the PEB.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations; the applicant concurred with the recommendation of the PEB that he be separated with severance pay.  There does not seem to be any error or injustice in this case.

3.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the physical disability evaluation system.  The DVA evaluates veterans throughout their lifetime, granting or adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that Agency.

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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.   The applicant has not shown error, injustice, or inequity for the relief he requests.



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.



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               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)                                         AR20080007936



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ABCMR Record of Proceedings (cont)                                         AR20080007936



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