IN THE CASE OF:	  

		BOARD DATE:	        24 FEBRUARY 2009

		DOCKET NUMBER:  AR20080012062 


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 on 6 December 2005 with disability severance pay be changed to a retirement due to permanent physical disability.

2.  The applicant essentially states that the Army discharged him with disability severance pay with 18 years, 9 months, and 10 days of active duty service even though he wanted to remain on active duty.  He also states, in effect, that he never received any nonjudicial punishment or other adverse actions, and that it was unjust that he was discharged.  He further states that he is now 100 percent disabled and contends that he should be declared regularly retired versus medically separated so that he can be issued a retired identification card.

3.  The applicant provides a self-authored memorandum, dated 28 June 2008, an undated self-authored letter, his DD Form 214 (Certificate of Release or Discharge from Active Duty), Enlisted Record Brief, and his three Noncommissioned Officer (NCO) Evaluation Reports covering the period January 2002 through February 2004, the first page of orders, dated 16 November 2005, which discharged him on 6 December 2005, his leave and earning statements from December 2005 which shows that he was paid, in part, $69,796.80 in disability severance pay, his leave and earnings statement from July 2005, a 
DA Form 3349 (Physical Profile) which appears to be dated by the approving authority on 2 December 2004, the front page of a DD Form 2807-1 (Report of Medical History), a Standard Form 507 (Clinical Record – Continuation Sheet), page 3 of a DD Form 2807-1, a DD Form 2697 (Report of Medical Assessment), dated 28 December 2004, pages 1 and 3 of a DD Form 2808 (Report of Medical Examination), dated 22 March 2005, three pages of documents regarding an evaluation performed on 4 February 2005, five pages of documents regarding his physical and interview on 22 March 2005, two pages of documents related to an evaluation focused on his psychiatric condition on 28 July 2005, a memorandum, dated 22 July 2005 from his commanding officer regarding his Army Physical Fitness Test exemption, a memorandum, dated 22 July 2005, from his commanding officer regarding his assessment of the applicant's performance, a DA Form 3947 (Medical Evaluation Board [MEB] Proceedings), dated 
15 September 2005, an undated self-authored letter to the president of a physical evaluation board (PEB) in which he declined his right to apply for continuation on active duty (COAD), a Physical Disability Information Report, dated 15 November 2005, a Personnel Action Certificate, a DA Form 5889-R (PEB Referral Transmittal Document), dated 30 September 2005, a list of medications presumably issued to the applicant between 26 June 2003 and 19 September 2005, and 11 pages of documents from the Department of Veterans Affairs (DVA) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Regular Army on 
10 February 1987.  He completed initial entry training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist), which was later converted into MOS 92G with the same duty title.  He progressed in rank and pay grade from private/E-1 to staff sergeant/E-6, with his last promotion occurring on 1 August 1996.  His potential for further promotions appears to have been undermined by a memorandum of reprimand, dated 18 July 1997 for driving a motor vehicle while under the influence of alcohol, another memorandum of reprimand, dated 11 March 2003, for being arrested for driving under the influence of alcohol and refusing to consent to a chemical breath test, and a third memorandum of reprimand, dated 29 December 2004, for being in physical control of a motor vehicle and refusing to take a lawfully requested Intoxilyzer 5000 test.  

2.  The applicant was issued a physical profile in late 2004 for adjustment disorder without depression, chronic scrotal and pelvic pain, and gouty arthritis with multiple joint pain.  The profiling officer who issued the applicant his physical profile recommended that he be evaluated by an MEB.

3.  On 15 September 2005, an MEB diagnosed the applicant with chronic polyarthralgia in his ankles, hands, wrists, and left hip secondary to gouty arthritis and chronic left scrotal pains, and recommended that he be referred to a PEB.  The applicant initialed item 15 of his DA Form 3947 indicating that he did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  He also agreed with the MEB's findings and recommendations.  

4.  Although the applicant's PEB proceedings are not in his official military records, the applicant provided an undated self-authored letter addressed to the president of his PEB in which he declined his right to apply for COAD.

5.  The applicant's military records contained a properly constituted DD Form 214 which essentially shows that he was honorably discharged on 6 December 2005 after completing 18 years, 9 months, and 27 days of active duty.  This document also shows that he was awarded disability severance pay, and his December leave and earnings statement shows that this amounted to $69,796.80.  Orders, dated 16 November 2005, also show that he was discharged with a 10 percent disability rating.  

6.  The applicant provided correspondence from the DVA which essentially shows that his combined disability rating was 80 percent, but that he would be paid at the 100 percent rate based on his entitlement to individual unemployability.  

7.  During the processing of this case, an advisory opinion was obtained from the United States Army Physical Disability Agency (USAPDA).  That agency opined that the applicant did not provide any claims or evidence of any specific errors by the PEB.  It also indicated that on 21 October 2005, an informal PEB found the applicant unfit for polyarthralgia of his hands, knees, and ankles and rated him at 10 percent for pain in accordance with the U.S. Army Pain Policy.  It also stated that the applicant was found unfit for his left scrotal pain and rated at zero percent, but that his psychiatric conditions were found to be fit for duty.  Additionally, it stated that the PEB recommended that the applicant be separated with severance pay, and shows that on 7 November 2005, after being counseled on his rights, the applicant concurred with the PEB's findings and waived his right to a formal hearing.  Further, it essentially reiterated that the applicant did not provide any evidence of error by the PEB, and concluded that the PEB's findings were supported by substantial evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation in existence at the time of his separation.  It also recommended no changes to the applicant's military records.

8.  A copy of this advisory opinion was forwarded to the applicant for comment and/or rebuttal.  On 17 November 2008, the applicant faxed his rebuttal, and essentially stated that he felt that the PEB did not take into consideration all of his ailments prior to separating him.  He referenced lost feeling on the left side of his face due to having wisdom teeth pulled, lasik surgery which gave him  excessively dry eyes and required some type of implants in his lower eyelids to produce tears, and having a polyp removed from his throat and nodules removed from his chest.  He also indicated that he has been walking with a cane since a biopsy, and that he is 40 percent deaf and had suffered numerous burns and falls.  He also essentially contends that he should have been promoted to master sergeant/E-8 based on his qualifications, and that his commander even recommended that he be medically retired.  Additionally, he contended that he feels that a serious injustice was done to him, and that he did not even receive a "good luck in life" send-off, and that right is right, and wrong is wrong, and that his separation instead of medical retirement is wrong.  

9.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) of Army Regulation 40-501 essentially provides, in pertinent part, that Soldiers with conditions listed in this chapter will be referred for disability processing.

10.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a DVA 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 DVA, 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 DVA 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 DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge on 6 December 2005 with disability severance pay should be changed to a retirement due to permanent physical disability.

2.  It is clear that the applicant contends that his discharge on 6 December 2005 with disability severance pay should be changed to a retirement due to permanent physical disability.  However, 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.

3.  While the applicant's PEB proceedings are not in his official military records, the evidence of record, which included the advisory opinion from the USAPDA, shows that the applicant's disability processing was accomplished in accordance with regulations in effect at the time.  The fact that the applicant was assigned a higher disability rating by the DVA for multiple conditions was noted.  However, this fact does not establish an error or injustice in the disability rating rendered by the Army.  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 DVA, 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.  

4.  The applicant's contention that he wanted to remain on active duty was considered, but found to lack merit.  The evidence shows that both during his MEB and his PEB, the applicant elected that he did not desire COAD.  

5.  While it is regrettable that the applicant felt slighted during his separation from the Army, as the applicant did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout his disability processing, regularity must be presumed in this case.

6.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  __X______  ___X_____  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.  While the Board regrets that a more favorable response could not be accomplished, it wishes to extend its deepest appreciation to the applicant for the sacrifices he made in service to the United States during his military service.  The applicant and all Americans should be 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)                                         AR20080012062



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080012062



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1