IN THE CASE OF:	    

		BOARD DATE:	        4 December 2008

		DOCKET NUMBER:  AR20080014123 


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 disability rating be increased to 
30 percent or more (i.e., a medical retirement).  He also requests that he be medically retired in pay grade E-6/staff sergeant. 

2.  The applicant states, in effect, that he was only rated at 20 percent which is not enough to be medically retired.  He feels that his 14 years of service should have counted for something besides severance pay.  He indicates that he was a sergeant with promotable status and that he was in a medical hold unit for five years.  He points out that he was rated at 100 percent by the Department of Veterans Affairs (DVA), that 60 percent is for asthma, and that the Physical Evaluation Board (PEB) did not rate him at all for asthma. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a DVA Rating Decision, dated 3 August 2006; a DVA Rating Decision, dated 18 May 2006; a DA Form 199 (Physical Evaluation Board (PEB) Proceedings; a DA Form 3947 (Medical Evaluation Board Proceedings); orders, dated 2 December 1999, 30 March 2005, and 22 February 2000; a memorandum, dated 11 February 2000; and a Radiologic Examination Report, dated 7 February 2005.  

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 enlisted on 13 February 1991 and trained as a food service specialist.  He was promoted to sergeant effective 1 May 1996.

3.  On 28 October 2004, a Medical Evaluation Board (MEB) diagnosed the applicant with low back pain, cervical spine pain, left shoulder irritability, left elbow pain, left hip pain, asthma, major depressive disorder, and migraine headaches.  Bilateral knee pain and status post open fracture of the left olecranon (the bony point of the elbow) were found to be non-disqualifying.  The MEB recommended referral to a PEB.  On 13 December 2004, the applicant agreed with the findings and recommendations. 

4.  On 4 January 2005, an informal PEB found the applicant physically unfit due to chronic back pain (20 percent), cervical spine, left shoulder and left hip, secondary to a serious motor vehicle accident in May 2000 for which the Soldier takes opioid pain medications, and associated with a depressive disorder that is secondary to his medical problems; migraine headaches (zero percent) described as pulsatile, throbbing, occurring approximately every other day associated with nausea, vomiting and photophobia, sometimes occurring at night waking the Soldier from sleep, it is noted that the applicant has no emergency room visits on record; and asthma (zero percent), severe, with persistent obstruction as manifested by shortness of breath, wheezing, chest tightness with nocturnal symptoms 3 times a week.  The PEB states, in pertinent part, "Soldier takes multiple medications to include Advair, Singulair and Albuterol with continued daily symptoms."  Soldier is non-compliant with medications.  The applicant’s left elbow pain was found to be unfitting, not rated; and his bilateral knee pain and status post open fracture of the left olecranon were found to be medically acceptable.  The PEB recommended a combined rating of 20 percent and that the applicant be separated with severance pay.  On 20 January 2005, the applicant concurred with the PEB’s findings and waived a formal hearing.   

5.  On 25 January 2005, the U.S. Army Physical Disability Agency approved the PEB’s findings and recommendations.

6.  On 29 March 2005, an administrative correction to the previously issued DA Form 199, dated 4 January 2005, to correct the applicant's Social Security number was made.    

7.  On 25 April 2005, the applicant was honorably discharged in the rank of sergeant/E-5 by reason of physical disability with severance pay (20 percent) with entitlement to $58,816.80.  He had completed 14 years, 2 months, and 
13 days of creditable active service. 

8.  There is no evidence of record which shows he was promoted to staff sergeant prior to his discharge or was on a promotion standing list.  

9.  In support of his claim, the applicant provided a DVA Rating Decision, dated 
3 August 2006, which shows that service connection for sensory loss, right lower extremity was granted at 10 percent; that service connection for sensory loss, left lower extremity was granted at 10 percent; and that evaluation of lumbar spine injury with resulting spondylolysis at L5 and deformed transverse processes of L2-4 (formerly residuals of injury, vertebral fracture of lumbar spine) was increased to 20 percent.  

10.  The applicant also provided a DVA Rating Decision, dated 18 May 2006, which shows that evaluation of residuals of fracture, acetabulum at left hip was increased to 20 percent; evaluation of asthma with history of pneumothorax was increased to 60 percent; evaluation of hiatal hernia with gastroesophageal reflux disease (claimed as acid reflux) was increased to 10 percent; evaluation of tinea versicolor (claimed as skin condition) was increased to 10 percent; evaluation of pseudofolliculitis barbae was increased to 10 percent; and the percentage ratings for evaluation of postoperative residuals of fracture, left elbow (claimed as status post open fracture of the left olecranon), surgical scar, left elbow, residuals of injury, left shoulder, major depressive disorder with obsessive-compulsive disorder, migraine headaches, chondromalacia, right knee, chonodromalacia, left knee, bilateral tinnitus (claimed as ringing in both ears), and scar, right pectoral (claimed as scar on chest) were continued.      

11.  Army Regulation 635-40 (Physical Evaluation fro Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states 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.
12.  Army Regulation 635-40, Appendix B- 3c(1)(a) and (b) states that there are many conditions which may be improved sufficiently by treatment to prevent disability, or to significantly decrease it.  If a Soldier unreasonably fails or refuses to submit to medical or surgical treatment or therapy, or take prescribed medications, or to observe prescribed restrictions on diet, activities, or the use of alcohol, drugs or tobacco, that portion of the disability that results from such failure or refusal will not be rated where it is clearly demonstrated that the Soldier was advised clearly and understandably of the medically proper course of treatment, therapy, medication or restriction and that the Soldier's failure or refusal was willful or negligent and not the result of mental disease or a physical inability to comply.

13.  Department of Defense Instruction (DODI) 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities (VASRD)) notes that the VASRD percentage ratings represent, as far as can practicably be determined, the average impairment in civilian occupational earning capacity resulting from certain diseases and injuries.  However, not all the general policy provisions of the VASRD are applicable to the Military Departments.  Many of the policies were written primarily for VA rating boards and are intended to provide guidance under laws and policies applicable only to the VA.  This Instruction replaces some sections of the VASRD.  VASRD code 8100, migraine, states that "prostrating" means that the Service member must stop what he or she is doing and seek medical attention.  The number of prostrating attacks per time period (day, week, month) should be recorded by a neurologist for diagnostic confirmation.  Estimation of the social and industrial impairment due to migranious attacks should be made.    

14.  Military Personnel Message Number 05-084, issued on 4 April 2005, provides clarification to provide consistency with regard to promotion eligibility for enlisted Soldiers undergoing evaluations by the Military Occupational Specialty/Medical Retention Board, MEB, or PEB.  Paragraph 1-19d of Army Regulation 600-8-19 states that per the provisions of Title 10, U.S. Code, section 1212, Soldiers who are on a promotion list at the time of separation for disability with entitlement to disability severance pay will be paid such compensation at the promotion list grade.  Further, the Soldier will be promoted to the designated grade effective the Soldier's separation date.

15.  Title 38, U. S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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 DVA benefits based on an evaluation by that agency.

16.  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.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

17.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were noted.  However, he concurred with the findings and recommendation of the PEB on 20 January 2005.

2.  The PEB indicated that the applicant was non-compliant with asthma medications.  Army Regulation 635-40 states if a Soldier unreasonably fails or refuses to take prescribed medications that portion of the disability that results from such failure or refusal will not be rated where it is clearly demonstrated that the Soldier was advised clearly and understandably of the medically proper course of treatment, therapy, medication or restriction and that the Soldier's failure or refusal was willful or negligent and not the result of mental disease or a physical inability to comply.  Therefore, it appears the applicant was properly not rated for asthma.  

3.  The PEB states that there were no emergency room visits on record for the applicant's migraine headaches.  Therefore, it appears the applicant was properly not rated for migraines.

4.  The rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Consequently, due to the two concepts involved, an individual’s medical condition may not be considered to be a physical disability by the Army and yet be rated by the DVA as a disability. 

5.  There is insufficient evidence to show the applicant’s disabilities were improperly rated by the PEB or that his separation with severance pay was not in compliance with law and regulation.  Therefore, there is no basis for granting the applicant's request for a medical retirement.  

6.  There is no evidence of record, and the applicant has provided no evidence, which shows he was on a promotion list for staff sergeant/E-6 prior to his discharge on 25 April 2005.  Therefore, there is insufficient evidence on which to amend his rank or the rank at which his severance pay was computed at this time.

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.




      _______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)                                         AR20080014123





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014123



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1