IN THE CASE OF:	

		BOARD DATE:	  10 March 2009

		DOCKET NUMBER:  AR20080012720 


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, medical retirement.

2.  The applicant states, in effect, that he should have been medically retired from the Army instead of medically separated, that he had 7 years and 11 months of service, and that he had a disability rating well over 20 percent (%).  He also states that his separation was based solely on his shoulder injury and that his injuries to both knees, neck, and lower back were not considered or evaluated at that time and should have been.

3.  The applicant indicates he has a claim with the Department of Veterans Affairs) (VA) and that he is currently rated 80%; however, he did not provide a copy of his VA rating or any other evidentiary documents with his application.

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 after having prior service, he enlisted in the Regular Army and entered active duty on 2 July 1997.  He was trained in, awarded, and served in military occupational specialty (MOS) 31F (MSE [Mobile Subscriber Equipment] Network Switching Systems Operator).

3.  The applicant's Official Military Personnel File (OMPF) contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 29 July 1999.  It shows that the applicant experienced right shoulder pain after a parachute landing fall on or about 5 October 1998 at Fort Bragg, North Carolina, that was considered to have occurred in line of duty.

4.  The applicant’s OMPF includes a narrative summary (NARSUM) by Womack Army Medical Center (WAMC), Fort Bragg, North Carolina, that was prepared for a Medical Evaluation Board (MEB) that documents his 8 September 1999 medical examination.  The NARSUM shows that the applicant sustained right shoulder, neck, and low back pain during a parachute landing fall on
30 September 1998, for which he was initially treated with rest and non-steroidal anti-inflammatories.  His radiographs were all negative.  The applicant subsequently began to develop persistent right shoulder pain with scaplothoracic crepitus and he received the following list of medical treatment:  extensive supervised physical therapy and sub-scapular bursa injections without improvement; he underwent superomedial border excision of the right scapula on 12 February 1999, with temporary relief; and he was referred to the Anesthesia Pain Clinic, where he underwent several interscalene and cervical ganglion blocks with limited success.

5.  The NARSUM provided the applicant’s past medical history which shows that the applicant marked Block #9 (Back Pain) and indicated his complaint of neck and low back pain from which he still suffers following his injury in September 1998.  It also shows that he was diagnosed with “Post traumatic right shoulder pain” and “reflex sympathetic dystrophy, right shoulder, post traumatic, mild.”

6.  On 15 September 1999, the applicant was diagnosed by the MEB for “post traumatic right shoulder pain; reflex sympathetic dystrophy, right shoulder post traumatic, mild; and late effect from injury.”  The MEB recommended referral to a Physical Evaluation Board (PEB).  The applicant was informed and agreed with the findings and recommendations of the MEB on 28 September 1999.


7.  On 19 October 1999, the President, United States Army PEB, returned the MEB proceedings to the Commander, WAMC, and requested that a complete examination of the applicant’s back, to include its range of motion, be performed. The President also requested to know if there was tenderness, muscle spasm, the result of the neurological exam and straight leg raises, if the back pain was medically acceptable or not; and an explanation of what is meant by MEB Dx 3, “late effect from injury.”

8.  On 1 December 1999, Medical Corps officials at WAMC forwarded an MEB Addendum to the President of the PEB, answering his request for additional information regarding the applicant’s complaint of back pain.  The addendum shows that the applicant indicated had some low back pain, but it was not a significant problem for him; his primary problem is his upper back pain which is secondary to his previous injury and surgery.  His lower extremity exam was normal and his back pain condition was considered to be medical acceptable.  The applicant read and concurred with the results included on the addendum.

9.  On 10 January 2000, the applicant's case was considered by a PEB.  That PEB considered the applicant's post traumatic right shoulder pain; reflex sympathetic dystrophy, right shoulder post traumatic, mild; and late effect from injury.”  As a result, the PEB found that the applicant’s medical condition prevented his performance of duty in his grade and specialty.  The PEB recommended he be separated with severance pay with a physical disability rating of 20%.  The PEB also determined that the applicant’s diagnosis of MEB Dx 3 and those found on the Addendum met retention standards.

10.  On 19 January 2000, the applicant concurred with the PEB’s decision and waived his right to a formal hearing of his case.

11.  Headquarters, 18th Personnel Services Battalion, Orders 041-0259, dated 10 February 2000, directed the applicant’s discharge from active duty on 4 May 2000 with a 20% disability rating.

12.  Accordingly, the applicant was discharged from active duty on 4 May 2000.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at that time confirms the applicant was honorably discharged by reason of disability with severance pay.  It also shows he completed a total of 5 years, 6 months, and 8 days total active federal service.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.

14.  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.

15.  Title 38, U.S. Code, sections 310 and 331, 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.  

16.  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.  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's contention that he should be medically retired from active duty rather than separated by reason of disability with severance pay and that his disability rating is higher than 20% has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was properly processed through the Army's PDES and that he was separated by reason of disability with severance pay with a 20% disability rating based on his unfitting conditions of “post traumatic right shoulder pain; reflex sympathetic dystrophy, right shoulder post traumatic, mild.”  The applicant's condition related to his back pain found on the MEB Addendum was noted; however, because it was not unfitting, a disability rating was not granted for this condition.

3.  Other than the shoulder condition that resulted in his disability discharge, there is no indication that the applicant's injuries to his knees, neck, lower back (conditions addressed in the MEB Addendum), or any other conditions were determined to be unfitting for further service, as is required in order for them to contribute to the disability rating assigned by the PEB.  Although the applicant did not provide an actual VA Rating Decision, even if he has been rated at 80% by the VA, this factor alone does not support a change to the disability rating assigned by the PEB.

4.  While both the Army and the VA use the VA Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army.  The VA may rate any service-connected impairment, thus compensating for loss of civilian employment.  It may also 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.  However, any change in the disability rating granted by the VA would not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.  The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  As a result, absent any evidence to confirm the applicant's back pain condition was determined to be unfitting for further service, there is an insufficient evidentiary basis to change the 20% disability rating assigned the applicant by the PEB at the time of his discharge.

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 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)                                         AR20080012720



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080012720



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1