IN THE CASE OF:
BOARD DATE: 21 October 2008
DOCKET NUMBER: AR20080012233
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 9 July 2008 discharge, by reason of physical disability with severance pay, be voided and that his record be corrected to show that he was instead medically retired on that same date.
2. The applicant states, in effect, that based on the Medical Evaluation Board (MEB) narrative summary, he believes that his combined disabilities for which he received a combined rating of only 20 percent (%) are more debilitating than the rating that he received. Therefore, he should have been granted a higher rating, and as a result, he should have been retired vice discharged with severance pay based on his disabilities.
3. The applicant provides the following documents in support of his application: Separation Document (DD Form 214); MEB Proceedings (DA Form 3947) front page; MEB Narrative Summary; Physical Evaluation Board (PEB) Proceedings (DA Form 199); Chronological Record of Medical Care (SF 600); and Information Sheet (Title 10-Armed Forces, Subtitle A- General Military Law, Part II- Personnel, Chapter 61 Retirement or Separation for Physical Disability).
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows that he enlisted in the Regular Army and entered active duty on 25 September 2001, and that he held and served in military occupational specialty (MOS) 25S (Satellite Communications Systems Operator) and MOS 14S (Avenger Crewmember).
2. The applicant's record also shows that he was promoted to specialist (SPC) on 14 March 2005, and that this is the highest rank he attained while serving on active duty.
3. On 31 March 2008, a MEB convened at Madigan Army Medical Center, Tacoma, Washington, to consider the applicant's case. The MEB found the applicant unfit for continued duty due to his Bilateral knee pain with Patellofemoral Syndrome, Chronic low back pain, Sleep Apnea requiring BiPAP, Bilateral hip pain with Trochanteric Bursitis, Hypertension, Hyperlipidemia with elevated LDL, Chronic insomnia, and Morbid Obesity.
4. On 16 April 2008, the applicantÂ’s case was evaluated by a PEB which convened at Fort Lewis, Washington. The PEB found that the applicant was physically unfit and recommended a disability rating of 20%, 10% for chronic low back pain, 10% for right knee, 0% for left knee and 0% for bilateral hip pain. The PEB determined that the MEB diagnosed condition of Sleep Apnea (#3) was not unfitting as electricity for CPAP is reasonably available and despite his complaint of daytime somnolence, the applicant's duty performance was above average, and he continued to drive. The MEB diagnosed conditions identified as #5, 6, 7, and 8 met retention standards and were, therefore, not unfitting or ratable by the PEB. The PEB finally recommended the applicant's separation with severance pay.
5. On 21 April 2008, the applicant concurred to the PEB findings and waived a formal hearing of his case, and the PEB findings and recommendations were approved for the Secretary of the Army by proper authority.
6. On 3 March 2002, the applicant was honorably discharged under the provisions of paragraph 4-24b (3), Army Regulation 635-40, by reason of physical disability with severance pay. The DD Form 214 he was issued confirms he completed a total of 6 years and 2 months of active military service.
7. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability. It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.
8. Paragraph 3-5 of the PDES regulation contains guidance on rating disabilities. It states, in pertinent part, 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. Any non-ratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable.
9. Title 38, United States Code, sections 1110 and 1131, permits the Department of Veterans Affairs (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. The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicantÂ’s processing through the Army PDES.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his combined disabilities are more debilitating than 20% and that he should have been medically retired was carefully considered. However, by regulation the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties. 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. Any non-ratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable.
2. The evidence of record confirms that the PEB determined that only two of the applicant's diagnosed conditions were unfitting and thereby ratable. Although, the MEB and PEB recognized the applicant suffered from other medical conditions, these conditions were determined not to be unfitting and therefore were not ratable.
3. The evidence also shows the applicant's PDES processing was accomplished in accordance with the applicable law and regulation, and that the applicant concurred with the findings and recommendations of the PEB. All requirements of law and regulation were met and his rights were fully protected throughout his disability processing.
4. The applicant is advised that VA may award 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. It can also evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. In addition, the VA is the appropriate agency to seek care and compensation for service connected conditions that were not unfitting for further military service at the time of his processing through the Army's PDES.
5. 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 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) AR20080012233
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ABCMR Record of Proceedings (cont) AR20080012233
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