IN THE CASE OF:	  

		BOARD DATE:	        02 OCTOBER 2008

		DOCKET NUMBER:  AR20080008629 


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 for disability with severance pay be voided and that he be retired by reason of physical disability with at least a 50% disability rating for Post-Traumatic Stress Disorder (PTSD). 

2.  The applicant defers comment to his counsel. 

3.  The applicant provides supporting documents through his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s discharge for disability with severance pay be voided and that he be retired by reason of physical disability with at least a 50% disability rating for PTSD.

2.  Counsel states, in effect, that the applicant was erroneously and unjustly discharged for disability with severance pay when he should have been evaluated for PTSD and retired by reason of physical disability with a 50% disability rating.  He goes on to state that the applicant’s mental health disability issues were incorrectly diagnosed as a mild anxiety disorder that was not medically disqualifying.  However, on 7 June 2007, the VA awarded him a 50% disability rating for PTSD to be effective 28 June 2006, the day after his discharge and on 9 November 2007, the VA rated him at 100% for PTSD, which is indicative that the applicant was not properly evaluated by the Physical Evaluation Board (PEB).  Accordingly, he should be retired by reason of physical disability. 
3.  Counsel provides a 10-page brief with enclosures that consist of the applicant’s enlisted records brief, his DD Form 214 and DD Form 215, a report of medical examination, Medical Evaluation Board (MEBD) and PEB Proceedings, Chronological Records of Medical Care, and the applicant’s Department of Veterans Affairs (VA) Rating decisions. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army in Beckley, West Virginia on 20 August 2002 for a period of 6 years, training as an Air Defense Tactical Operations Center Operator/Maintainer (MOS 14J), airborne training and a $13,000 cash enlistment bonus.  He successfully completed his training and was assigned to Fort Bragg, North Carolina.  

2.  He was advanced to the pay grade of E-3 on 1 April 2003 and on 4 September 2003, he was transferred to Iraq in support of Operation Iraqi Freedom.  He remained in Iraq until 31 March 2004, when he was returned back to Fort Bragg.  He was subsequently advanced to the pay grade of E-4 on 1 June 2004.

3.  On 13 December 2005, the applicant underwent a medical examination and was diagnosed as having anxiety/panic attacks since his return from Iraq and the examining official noted that it was not disqualifying.

4.  In February 2006, the applicant was evaluated for chronic lower back pain and the examining official opined that he was not medically acceptable and should be referred to a PEB for disposition.

5.  On 13 February 2006, an MEBD was convened at Womack Army Medical Center.  The MEBD determined that the applicant had chronic lower back pain that existed prior to his entry into service (EPTS); however, it had been permanently aggravated by service (Soldier injured in a parachute jump at Fort Bragg).  The MEBD also determined that the applicant’s mild anxiety pain disorder was not disqualifying and recommended that he be referred to a PEB.  The applicant indicated that he did not desire to continue on active duty and he agreed with the findings and recommendation of the MEBD.

6.  On 14 March 2006, a PEB was conducted in Washington, D.C.  The PEB determined that the applicant’s chronic low back pain was due to service aggravation of a pre-existing condition that dated back to the year 2000.  The applicant entered active duty in 2002 and sustained an injury on 28 September 2004 during a parachute jump at Sicily Drop Zone at Fort Bragg.  The PEB assigned him a 10% disability rating for chronic low back pain and determined that his diagnosis of mild anxiety pain disorder was not disqualifying or unfitting and thus was not rated.  The PEB determined that the applicant should be discharged with severance pay if otherwise qualified.  The applicant concurred with the findings and recommendations and waived a formal hearing of his case. 

7.  On 27 June 2006, the applicant was honorably discharged in the pay grade of E-4 under the provisions of Army Regulation 635-40, paragraph 4-24B(3), due to disability with severance pay.  He had served 3 years, 10 months, and 8 days of total active service and was paid $14,740.80 in severance pay benefits.     

8.  On 7 June 2007, the VA assigned him a 50% disability rating for PTSD effective from 28 June 2006.  On 9 November 2007, the VA increased his disability rating to 100% effective 11 April 2007.  The VA also gave him additional ratings for degenerative disc disease, radiculopathy, and asthma. 

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides, in pertinent part, that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.

10.  Title 38, United States Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  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 different positions.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus 
compensating the individual for loss of a career; while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.
    
DISCUSSION AND CONCLUSIONS:

1.  An award of a VA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  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 different positions. 

2.  It appears that the applicant’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities (VASRD) and his separation with severance pay was in compliance with laws and regulations in effect at the time.

3.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing.  The Department of the Army ratings become effective the date that permanency of the diagnosis is established.

4.  The applicant has not provided sufficient evidence to show that the evaluation and the rating rendered by the PEB was incorrect or that he should have received a higher disability rating at the time of his separation. 

5.  The fact that the VA, in its discretion, has awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department.  
 
6.  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:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism. The applicant and all Americans should be justifiably proud of his service in arms.



      ___        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)                                         AR20080008629



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ABCMR Record of Proceedings (cont)                                         AR20080008629



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