IN THE CASE OF:	  

		BOARD DATE:	        11 December 2008

		DOCKET NUMBER:  AR20080008720 


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, in an amendment to his application that item 11 (Primary Specialty) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 8 February 2007 be corrected to show 17 years, 9 months, and 21 days.  The applicant requests that his military records be corrected to show that he was medically retired.  He further requests that Headquarters, Joint Readiness Command Orders 004-0333, dated 
4 January 2007, should be changed to show that his injuries were incurred in the line of armed conflict during a war period.

2.  The applicant states, in effect, that item 11 of his DD Form 214 incorrectly shows the years and months he performed in his specialty as 20 years and 
3 months.  The applicant further states that he should be medically retired because his rating of 20 percent does not reflect the diagnoses on his DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 21 July 2006.  The applicant states that he has a Department of Veterans Affairs (VA) rating of
90 percent and that he should have been medically retired.  

3.  The applicant continues that his post-traumatic stress disorder (PTSD), major depression, skin disease, and sleep apnea were a direct result of war that were incurred in the line of armed conflict during a war period as defined by law.  He states that the above injuries were not listed on his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 12 October 2006.  


4.  The applicant provides his DD Form 214 with the period ending 8 February 2007; a DA Form 3947, dated 21 July 2006; a DA Form 199, dated 12 October 2006; a Physical Disability Information Report, dated 4 January 2007; and a VA Service Connected/Rated Disabilities work copy sheet, prepared on 6 August 2007 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior service in the U.S. Army Reserve (USAR).  He enlisted in the Regular Army on 18 April 1989.  

2.  On 21 July 2006, an MEB was completed on the applicant and resulted in his being diagnosed with chronic low back pain (date of origin 13 July 1998); cervicalgia (date of origin 7 July 2005); and obstructive sleep apnea (date of origin 23 June 2003).  These conditions were found to not meet medical retention standards.  Diagnoses of PTSD, hypertension, elevated serum lipids, and pes planus conditions were found to be medically acceptable.  The MEB referred the applicant's case to a PEB for evaluation.  

3.  An advisory opinion prepared for this case shows that the applicant did not agree with the MEB findings.  On 8 August 2006, he submitted a one-page document which asked for four specific changes to comments in the MEB, but he did not ask for any changes to the diagnoses, whether they properly met medical retention standards, or indicate that some diagnoses were missing.

4.  The advisory opinion further indicated that on 26 September 2006 an informal PEB found the applicant fit for duty.  On 2 October 2006, the applicant non-concurred with the PEB and submitted a statement stating why he should be found unfit.

5.  On 12 October 2006, an informal PEB reconsidered and found the applicant unfit based on his chronic low back pain without neurologic abnormality, positive tenderness, range of motion limited to pain; and chronic neck pain secondary to facet hypertrophy, without neurologic deficit, range of motion limited by pain, and positive tenderness.  The PEB rated each of these conditions at 10 percent, for a total of 20 percent, and recommended separation with severance pay.  His sleep apnea was found to be not unfitting.

6.  On 18 October 2006, the applicant non-concurred with the findings but waived a formal PEB hearing and submitted a request for a Continuance on Active Duty (COAD) in which he stated that he could maintain himself in a normal military environment without the environment adversely affecting his health or requiring excessive medical care.  
7.  On 2 November 2006, the PEB responded to the applicant's non-concurrence and indicated that since he had not submitted any new evidence that their finding would remain unchanged.  On 6 December 2006, the applicant's request for COAD was denied.

8.  Headquarters, Joint Readiness Training Center and Fort Polk Orders 004-0333, dated 4 January 2007, show that the applicant was being discharged on 
8 February 2007.  Item f shows the entry "Disability is based on injury or disease received in LOD as a direct Result of Armed Conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law: No" and item g shows the entry "Disability resulted from a combat related injury as defined in 26 USC 104: No."

9.  On 8 February 2007, the applicant was discharged with severance pay.  His DD Form 214 with the period ending 8 February 2008 erroneously shows 
20 years and 3 months in item 11.  Item 12c (Net Active Service this Period) shows 17 years, 9 months, and 21 days.

10.  The applicant provided a VA Service Connected/Rated Disabilities work copy sheet, prepared on 6 August 2007.  The document indicates he had a combined 90 percent service-connected disability rating for deformity of the penis - zero percent, intervertebral disc syndrome - 30 percent, intervertebral disc syndrome - 20 percent, bursitis - 10 percent, bursitis (again) - 10 percent, PTSD - 30 percent, sleep apnea syndrome - 50 percent, hypertensive vascular disease - 10 percent, residual of foot injury - zero percent, complete atrophy of the testis - zero percent, and flat foot condition - zero percent.

11.  In the processing of this case, an advisory opinion was obtained from a Legal Advisor, United States Army Physical Disability Agency who recommended disapproval of the applicant's request.  That advisor stated, "The applicant requests a rating for all his conditions because the VA rated all his conditions.  The applicant does not state that any errors were made by the PEB in rating his back and neck pain.  VA ratings are often different and do not reflect errors in either the VA's or Army's disability ratings.  The Army's system is a performance based system and only unfitting conditions may compensate (Army Regulation 635-40, paragraph 3-1 and DoDI 1332.39, Section 6.1.7).  The preponderance of evidence before the PEB did not support an unfit finding except for the applicant's neck and back pain."  The advisor further stated that although the applicant's sleep apnea required treatment, there was no evidence that it hindered his daily ability to perform his duties.  The advisor concluded that the other listed conditions all met medical retention standards and were not unfitting, not compensable.  

12.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not reply.

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  Paragraph 2-4 states, in pertinent part, in item 11 enter the titles of all military occupational specialties (MOSs) served for at least 1 year and include for each MOS the number of years and months served.  For time determination, 16 days or more count as a month.  It further states, do not count basic training and AIT [advanced individual training].

14.  Army Regulation 635-40 (Physical Evaluation), chapter 3 provides 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.  To be found unfit by reason of physical disability, individuals must be unable to perform the duties of grade, rank or rating.

15.  Army Regulation 635-40 states 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.

16.  Army Regulation 635-40, chapter 6 states that to be considered for continuance on active duty (COAD), a Soldier must be:

   a.  found unfit by a PEB because of a disability that was in the line of duty;
   
   b.  capable of maintaining one's self in a normal military environment without adversely affecting one's health and the health of others and without undue loss of time from duty for medical treatment;
   
   c.  physically capable of performing useful duty in a military occupational specialty for which he or she is currently qualified or potentially trainable; and
   
   
   d.  eligible due to:
   
   	(1)  having 15 years but less than 20 years of total service, or
   
   (2)  being qualified in a critical skill or shortage MOS, or
   
   (3)  having a disability that was the result of combat.

17.  Army Regulation 635-40, paragraph 4-19j states that in making a determination whether a disability should be classified as being incurred during an armed conflict or due to an instrumentality of war, the following must be considered: 

	a.  The disability resulted from injury or disease received in the line of duty as a direct result of armed conflict and which itself renders the Soldier unfit.  A disability may be considered a direct result of armed conflict if—

		(1)  The disability was incurred while the Soldier was engaged in armed conflict, or in an operation or incident involving armed conflict or the likelihood of armed conflict; while the Soldier was interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force; or while the Soldier was escaping or attempting to escape from such prisoner of war or detained status.

		(2)  A direct causal relationship exists between the armed conflict or the incident or operation, and the disability.

	b.  The disability is unfitting, was caused by an instrumentality of war, and was incurred in the line of duty during a period of war as defined by law, which includes the current conflicts. 

18.  The Veterans Administration Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel.  The Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

19.  Department of Defense Instruction (DODI) 1332.39 (Application of the VASRD) notes that the VASRD percentage ratings represent, as far as can practicably be determined, the average impairment in civilian occupational 
earning capacity resulting from certain diseases and injuries.  However, not all the general policy provisions of the VASRD are applicable to the Military Departments.  Many of the policies were written primarily for VA rating boards and are intended to provide guidance under laws and policies applicable only to the VA.  This Instruction replaces some sections of the VASRD.

20.  DODI 1332.39 states, for VASRD code 6847 (Sleep apnea syndromes), there are four percentage rating options:  zero percent, 30 percent, 50 percent, and 100 percent, corresponding to assessed levels of disability relative to civilian earning capacity due to sleep apnea.  It states the following interpretation will apply:

	Total industrial impairment					100 percent
	Considerable industrial impairment		  50 percent
	Definite industrial impairment				  30 percent
	Mild industrial impairment			    		    0 percent

21.  DODI 1332.39 states, in pertinent part, that VASRD Code 9411 (PTSD) is rated at 10 percent when less than criteria for the 30 percent, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment; rated at 30 percent when there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people.  The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment; rated at 50 percent when the ability to establish or maintain effective or favorable relationships with people is considerably impaired.  By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment; and rated at 70 percent when the ability to establish and maintain effective or favorable relationships with people is severely impaired.  The psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment.

22.  Title 38, U. S. Code, sections 1110 and 1131, 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that item 11 of his DD Form 214 should be corrected to show 17 years, 9 months, and 21 days.  In accordance with Army Regulation 635-5 the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It appears item 11 of his DD Form 214 was prepared in error in that it shows he held his MOS for 20 years and 3 months.  However, item 12c correctly shows his net active service for that period as 17 years, 9 months, and 21 days and is accepted as sufficient to show 17 years and 10 months as his correct years and months in his specialty for that period.  Therefore, item 11 of his DD Form 214 should be corrected to show years and months in his specialty as 17 years and 10 months.

2.  Although the applicant contends that his medical conditions were not properly considered by the medical board, he has not provided any evidence to show his medical conditions were not properly considered.  

3.  The MEB found his back and neck conditions and his sleep apnea did not meet retention standards.  The MEB found his other conditions, to include PTSD, to be medically acceptable.  He did not contest those findings.  Evidence shows that the PEB properly considered the applicant's medical conditions.  He was found unfit due to chronic low back pain.   His sleep apnea was found to be not unfitting.  

4.  Although the VA determined that he met the VASRD standard for a 
50 percent disability rating for his sleep apnea, there is no evidence to show that the applicant was unfit to perform his military duties because of sleep apnea.  However, the VA is free to apply VASRD as it sees fit.  

5.  It is noted that the applicant non-concurred with the PEB's findings and waived a formal board, but he also submitted a requests for COAD.  The fact that he requested a COAD is an indicator that he did not believe himself to be so medically unfit that his conditions should have been rated even higher than they were, as he now requests.

6.  There was no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which was not in itself considered disqualifying for military service when the applicant was found unfit because of his low back pain and neck pain, which was disqualifying.  Only the unfitting conditions or defects and those which contributed to his unfitness would be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Since there is no evidence to show that the applicant’s sleep apnea rendered him unfit, it was properly not considered by the MEB/PEB.

7.  There is insufficient evidence to show the applicant’s PEB disability rating is incorrect or that his separation with severance pay was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to change his disability rating.
8.  There is no evidence of record to show that the applicant served in Operation Enduring Freedom or Operation Iraqi Freedom.  There is no evidence and the applicant provided none to show his unfitting conditions were incurred as a direct result of armed conflict.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entry "92Y20 UNIT SUPPLY SPEC - 20 YRS 3 MOS" in item 11 of his DD Form 214; and 

	b.  amending his DD Form 214 in item 11 to add "92Y20 UNIT SUPPLY SPEC - 17 YRS 10 MOS."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing the applicant was medically retired and changing his orders to show that his injuries were incurred in the line of armed conflict during a war period



															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)                                         AR20080008720



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ABCMR Record of Proceedings (cont)                                         AR20080008720



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