IN THE CASE OF:	  

		BOARD DATE:	  18 February 2009

		DOCKET NUMBER:  AR20080013503 


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 for physical disability, with severance pay, be changed to a medical retirement.

2.  The applicant states, in effect, that documentary evidence shows that he has a combined service-connected disability of 80% and is unemployable.  Based on this, the applicant wants a review to be conducted so that his initial discharge can be changed to a medical retirement.

3.  In a DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States, the applicant also submitted to the Board, he states in effect, that the VA (Department of Veterans Affairs) has determined that he has disabilities which are considered by that agency to be 100% totally and permanently disabling effective 29 November 2000.

4.  In support of his request, the applicant submits a DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States, with eleven attachments; a copy of a Memorandum, Subject:  Unit Commander's Evaluation, date 14 February 2000; a copy of a Memorandum, Subject:  Line of Duty Determination, dated 9 March 2000; a copy of Orders 255-0257, Headquarters, 18th Personnel Services Battalion, Fort Bragg, North Carolina, dated 11 September 2000; a copy of a DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of his discharge of 28 November 2000; a copy of three pieces of correspondence addressed to him from the VA.

5.  In a follow up transmittal, the applicant submitted a second DD Form 293 with nine attachments.  These attachments include an undated Physical Disability Information Report; a copy of orders reassigning him to the Army transition center for the purposes of discharging him for disability reasons; a copy of his DD Form 214; a copy of a VA Rating Decision, dated 26 March 2001; a copy of a VA Rating Decision, dated 10 June 2002; a copy of a letter addressed to the applicant by the VA providing him a certificate for his use in obtaining commissary and exchange store privileges from the armed forces, dated 3 July 2002; a copy of a psychiatric examination report prepared for the applicant by the North Carolina Department of Health and Human Services, Disability Determination Services, dated 15 March 2003; a Notice of Decision - Fully Favorable, prepared for the applicant by the Social Security Administration, dated 25 October 2004; and a letter addressed to the applicant by the VA notifying him he was receiving compensation at the 100% rate because the evidence shows that he was unable to work due to his service-connected disabilities.

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 record shows he enlisted in the Army Reserve on 3 April 1991.  He enlisted in the Regular Army on 2 May 1991.  He successfully completed basic combat training at Fort Leonard Wood, Missouri, and his advanced individual training at Aberdeen Proving Ground, Maryland.  Upon completion of his training, he was awarded the military occupational specialty (MOS), 45B, Small Arms Repairer. The applicant reenlisted on 21 February 1996 and he continued to serve until he was discharged from the Army.

3.  The applicant was honorably discharged on 28 November 2000, under the provisions of Army Regulation 635-40, paragraph 4-24b(3), for disability with 
severance pay, in pay grade E-4.  Item 18 (Remarks) of his DD Form 214 shows he received $31,878.00 in disability severance pay.  His DD Form 214 shows when he was discharged, he had completed 9 years, 6 months, and 27 days net active service.

4.  The evidence shows that the applicant was referred to and underwent evaluation by a medical evaluation and a physical evaluation board for injuries he sustained while on active duty.

5.  On 14 February 2000, the applicant's unit commander prepared and submitted a Memorandum, Subject:  Unit Commander's Evaluation, to the President of the MEB/PEB (Medical Evaluation Board/Physical Evaluation Board).  In this memorandum, the unit commander stated, in effect, that the applicant had been involved in a motor vehicle accident and had sustained a neck and back strain.  His medical condition prohibited him from lifting more than 10 pounds, jumping, marching, backpacking, performing sit-ups, performing push-ups, wearing LCE (load carrying equipment), Kevlar, or going to the range.  It was the unit commander's opinion the applicant was incapable of performing his duties as a Soldier or in his current MOS (military occupational specialty).

6.  A copy of documents related to the applicant's MEB and PEB are not available in his official military personnel file.  The applicant did not provide a copy of these documents with his request and they are therefore not available for the Board's review.

7.  According to regulation, it was required that the applicant be given the opportunity to read and sign the MEB proceedings.  If he did not agree with any item in the medical board report or narrative summary, he was required to be advised of appeal procedures.  It is presumed by the Board the applicant did not disagree with any item in the medical board report and he did not submit an appeal since he continued the process by having his records considered by the PEB.  The applicant was likewise given an opportunity to read and sign the PEB proceedings.  If he did not agree with any item in the physical evaluation board report or narrative summary, to include the percentage of disability that was being recommended and the disposition that was being proposed, he had the opportunity to appeal.  The applicant was required to have been advised of appeal procedures by the Physical Evaluation Board Liaison Officer (PEBLO) before the process began.  It is presumed by the Board the applicant did not disagree with any item in the physical evaluation board report and he did not submit an appeal since he continued the process by allowing himself to be discharged with a 20% service-connected disability rating.

8.  Orders were published by Headquarters, 18th Personnel Services Battalion, Fort Bragg, on 11 September 2000, reassigning the applicant to the US Army Transition Center, Fort Bragg, for discharge processing.  These orders indicate the applicant was authorized disability severance pay in the rank and pay grade Specialist, E-4, based on 9 years, 6 months, and 27 days service.  He was being separated with a 20% disability rating.  The disability was based on an injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a war period as defined by law.

9.  On 3 July 2002, the applicant received a letter from the VA, Winston-Salem, North Carolina.  He was provided instructions for obtaining an identification card and commissary and exchange privileges.  In addition, the letter included a certification the applicant had a service-connected disability rated at 100% and there were no future exams scheduled.

10.  On 2 October 2007, the applicant received a letter from the VA, Winston-Salem.  This letter stated that VA records showed the applicant had disabilities which were considered by the VA to be 100% totally and permanently disabling effective 29 November 2000 and that he received benefits under the provisions of Title 38, US Code 2101.

11.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, Chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

12.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

13.  Paragraph 4-24 of Army Regulation 635-40 pertains to disposition by the Total Army Personnel Command (PERSCOM) upon the final decision of the Physical Disability Agency (PDA).  It states that PERSCOM will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the United States Army Physical Disability Agency (USADPA) for clarification or reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and recommendations.  Subparagraph 4-24b(3) applies to separation for physical disability with severance pay.

14.  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/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

15.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.

16.  Department of Defense Directive 1332.18, Part 7, Final Disposition, paragraph E, Disposition of Unfit Members, provides for the permanent disability retirement of members who have at least 20 years of active service or whose total disability rating is at least 30 percent (emphasis added).

17.  Title 38, United States 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 (emphasis added).  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 Army and the VA, two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  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. 

18.  The VA can evaluate a veteran throughout his or her lifetime and adjust the individual's percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  A copy of documents related to the applicant's MEB and PEB are not available in his official military personnel file.  The applicant did not provide a copy of these documents with his request and they are therefore not available for the Board's review; however, the evidence shows that the applicant was determined to be physically disabled to reasonably perform the duties of his office, grade, rank, or rating and a recommendation was made to separate him from service with a 20% disability rating and with severance pay.  Because MEB and PEB results are not available to the Board, administrative regularity must be presumed pertinent to disability board proceedings.

3.  The evidence shows that orders were published directing the applicant's reassignment to the US Army Transition Center for separation processing and show that he was awarded a 20% disability rating.

4.  The applicant's DD Form 214 shows he was honorably discharged on 28 November 2000, under the provisions of Army Regulation 635-40, paragraph 4-24b(3), for disability with severance pay, in pay grade E-4.

5.  Although MEB and PEB proceedings are not available for the Board' review, throughout the MEB and PEB process, the applicant had the opportunity to challenge any of the findings and recommendations being made by these boards.  There is no evidence, and the applicant provided none, to show that he challenged any of the findings and recommendations of the MEB and PEB.  It appears the applicant was in agreement and accepted the findings and recommendations, to include the recommendation that he be separated with a 20% disability rating and with severance pay.

6.  The evidence shows the applicant applied to the VA for service-connected disability compensation after his discharge.  On 3 July 2002, he received a letter from the VA, Winston-Salem, North Carolina, notifying him, in effect, he had been given a service-connected disability rating of 100%.  The VA, operating under its own laws and regulations awarded the applicant a 100 percent disability rating.  This rating by the VA does not indicate that the rating given the applicant by the Army was in error.  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.

7.  In accordance with governing laws, the VA is the Department responsible for compensating veterans when service related conditions cause social or industrial impairment after a Soldier's discharge. 

8.  The VA can evaluate a veteran throughout his or her lifetime and can adjust the individual's percentage of disability based upon that agency's examinations and findings.

9.  In view of the foregoing, there is no basis for granting the applicant's request for a change of his discharge for physical disability reasons, with severance pay, to a medical retirement.

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)                                         AR20080013503





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ABCMR Record of Proceedings (cont)                                         AR20080013503



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