IN THE CASE OF:	  

		BOARD DATE:	  13 August 2008

		DOCKET NUMBER:  AR20080009756 


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, that her discharge for disability with severance pay, be corrected to placement on the Retired List for physical disability.

2.  The applicant states that after her discharge the Department of Veterans Affairs (VA) increased her disability rating to 80 percent and granted her individual unemployability status.

3.  The applicant provides her separation document (DD Form 214) and her VA rating decisions.

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.  The applicant’s military records show that she enlisted in the Regular Army on 28 September 1999, was awarded the military occupational specialty of chaplains assistant, and was promoted to pay grade E-4.

3.  On 4 February 2002, a Medical Evaluation Board (MEBD) was convened and determined that the applicant had right tarsal tunnel syndrome, low back pain, and bilateral knee pain.  The applicant agreed with the MEBD’s findings and stated that she did not desire to continue on active duty.

4.  On 20 March 2002 a Physical Evaluation Board (PEB) convened which determined that the applicant was physically unfit due to right tarsal tunnel syndrome rated as mild (rated 10 percent disabling); chronic mechanical low back pain (rated as 10 percent disabling); and bilateral knee pain rated as slight (rated as zero percent disabling).  The PEB recommended that the applicant be discharged with severance pay, rated 20 percent disabled.  The applicant concurred with those findings and recommendation and waived a formal hearing of her case.

5.  Accordingly, on 17 June 2002 the applicant was discharged for disability with severance pay.

6.  On 27 June 2002, the VA rated the applicant 10 percent disabled for right tarsal tunnel syndrome; 10 percent disabled for lumbosacral strain (claimed as lower back pain); 10 percent disabled for asthma (also claimed as bronchitis);
10 percent disabled for generalized anxiety disorder with major depressive episode; and zero percent disabled for bilateral retropatellar pain syndrome (claimed as anterior knee pain) and non-ulcer dyspepsia.

7.  On 19 June 2003, the VA rated the applicant 10 percent disabled for right tarsal tunnel syndrome and 10 percent disabled for left tarsal tunnel syndrome.

8.  On 18 July 2003, the VA rated the applicant 10 percent disabled for temporomandibular joint syndrome (claimed as jaw condition).

9.  On 28 September 2004, the VA rated the applicant 10 percent disabled for retropatellar pain syndrome, left knee and 10 percent disabled for retropatellar pain syndrome, right knee.

10.  On 14 October 2005, the VA rated the applicant 40 percent disabled for lumbosacral strain, and 30 percent disabled for bipolar disorder.


11.  On 12 May 2006, the VA awarded the applicant individual unemployability status.  In that rating decision it was stated “Treatment reports cited above show that you have increased memory problems and cognitive function due to anoxia from a suicide attempt.”

12.  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.

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

14.  Title 38, United States Code, permits the VA 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.  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 employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  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.  Confusion arises from the fact that different rating systems are used by the Army and the VA.  While both use the Veterans Administration Schedule for Rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant believes that since the VA has awarded her a higher disability rating than what she was given by the Army, her rating by the Army is in error.  This is not true.

2.  The Army rated the applicant for the medical conditions which prevented her from performing her duties in the military.  The applicant agreed with the findings and recommendations of her MEBD and PEB.  

3.  While the VA initially granted the applicant four 10 percent disability ratings, these were granted for conditions which included those which were not found to be physically unfitting by the Army.  This is not unusual and does not indicate any error or injustice by the ratings assigned by either Department.

4.  While the applicant was granted individual unemployability by the VA, this was awarded almost 4 years after her discharge from the Army and after the worsening of her medical condition by a suicide attempt.  This does not indicate error or injustice on the part of the Army; it indicates that the VA is properly reassessing the applicant’s medical condition and adjusting her disability rating in accordance with her current medical condition.

5.  As such, there is no basis for granting the applicant’s request.

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)                                         AR20080009756



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ABCMR Record of Proceedings (cont)                                         AR20080009756



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