29 January 2009
		IN THE CASE OF:	  

		BOARD DATE:	       29 January 2009 

		DOCKET NUMBER:  AR20080010693 


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 his discharge with severance pay due to physical disability be changed to physical disability retirement and that the disabilities be identified as combat related on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, that his disability rating should be increased based upon his rating by the Department of Veterans Affairs (VA).

3.  The applicant provides copies of his service medical records, medical evaluation board (MEB) report, physical disability board (PEB) report, and VA rating decision.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be retired due to disability incurred by an instrumentality of war (a parachuting accident) during a time of war.

2.  Counsel states that the PEB did not consider all of the applicant's medical conditions, including a fractured femur that he suffered in the parachuting accident, scars, a fractured jaw, sinusitis, and post traumatic stress disorder (PTSD) which the VA rated at 70 percent.

3.  Counsel provides no additional documentation in support of the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was a Regular Army staff sergeant with just under 6 years of active duty service in September 2004.  At that time, he fractured his right femur at the hip joint in an Army parachuting jump.  The injury appeared to heal and rehabilitation appeared to be successful until early 2006 when he developed symptoms related to the reconstructive hardware.  Following the removal of a reinforcing nail, he seemed to improve until he resumed normal military duties and training.  Then, pain increased and his condition worsened until he was determined to be unable to perform basic soldiering duties or perform in his military occupational specialty of petroleum supply specialist (92F).  He was referred to an MEB.

2.  On 6 March 2007 an MEB considered the applicant's case, determined that his condition was medically unacceptable, and referred him to a PEB with a diagnosis of chronic, constant right hip pain of moderate intensity.

3.  The PEB determined on 17 April 2007 that the applicant was physically unfit due to constant and moderate chronic right hip pain.  It found that his disability was based on injury or disease received in the line of duty as the direct result of armed conflict or caused by an instrumentality of war (a parachute landing) during a time of war.  The disability was also the result of a combat-related injury as defined in Title 26, United States Code, section 104 [which excludes certain categories of payments from taxable income, including "…amounts received…as disability income…incurred as a direct result of terrorist or military action…"].

4.  The PEB rated his disability at 20 percent and recommended separation with severance pay.  The applicant concurred and waived a formal hearing.  The results were approved on behalf of the Secretary of the Army.

5. The applicant was separated, on 4 May 2007, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), due to physical disability with severance pay.

6.  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.

7.  Title 38, United States 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.  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.

8.  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.

9.  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.

10.  In a 14 August 2008 advisory opinion, the Agency Legal Advisor, Physical Disability Agency, reviewed the case, including the VA ratings and recommended that the applicant's request be denied.  The advisory opinion was forwarded to the applicant for possible comment.  He did not respond.

11.  Army Regulation 635-5 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.  The regulation has no provisions for annotating the DD Form 214 to show the member's disabilities were combat related.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that his disability rating should be increased based upon his rating by the VA.

2.  There is no available evidence to show that PTSD had any adverse impact upon the applicant's duty performance.

3.  There is no available evidence showing that the applicant's disability was improperly rated.  His separation with severance pay was in compliance with law and regulation.

4.  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.

5.  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.

6.  The governing regulation has no provisions for annotating the DD Form 214 to show the member's disabilities were combat related.

7.  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)                                         AR20080010693



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ABCMR Record of Proceedings (cont)                                         AR20080010693



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