IN THE CASE OF:	  

		BOARD DATE:	        8 January 2009

		DOCKET NUMBER:  AR20080014328 


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 that the reason for his separation be changed from “medically unfit for retention” to “permanent disability retirement.”  In effect, he requests that the result of his Physical Evaluation Board (PEB) Proceedings be changed to afford him a higher disability percentage which would enable the PEB to recommend he be retired by reason of permanent physical disability.

2.  The applicant states, in effect, that he has been permanently disabled since being discharged from the military and has been unable to work.  He further states that he was told that with his 17 years of service if he had been medically retired, he would be qualified for Combat-Related Special Compensation (CRSC).

3.  The applicant provides military treatment records with various dates from 1996 to 1997; a DA Form 3349 (Physical Profile), dated 17 December 1996; magnetic resonance imaging (MRI) results from the Hughston Clinic, Columbus Georgia, dated 15 October 1997; a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 26 February 1997; a DA Form 199 (PEB Proceedings), dated 17 March 1997; a letter from the Serrato Spinal Center, dated 12 April 1997; and a Department of Veterans Affairs(DVA) rating, dated
4 April 2008.





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 was a member of the Georgia Army National Guard (GAARNG) serving with the 82nd Maintenance Company, Columbus, GA.  On 11 September 1995 while performing annual training, he fell playing basketball and injured his back.  In December 1996, the applicant was given a permanent L-3 profile because of a herniated disk.  In July 1997, he underwent a lumbar laminectomy at the L5/S1 position.  

3.  On 15 January 1997, the applicant’s commander stated the applicant was unable to perform his required MOS duties and referred him through the Physical Disability Evaluation System (PDES).

4.  On 26 February 1997, at Fort Benning, GA, the applicant underwent MEB processing.  The MEB Narrative Summary (NARSUM) indicates the applicant injured his back upon landing while jumping during a basketball game while on his annual training which caused him back and leg pain.  He was evaluated and diagnosed with:
	
	a.  S1 radiculopathy bilaterally with the right being worse than left.

	b.  Degenerative disk disease with some moderate bulging and stenosis from the neuroforaminal stenosis.

	c. Hypertension.

5.  The MEB recommended the applicant be referred to a PEB.  On 3 March 1997, the approving authority approved the findings and recommendation of the MEB.  

6.  On 4 March 1997, the applicant non-concurred with the MEB.  The approving authority considered the applicant's appeal, but on 10 March 1997, the original findings and recommendation were confirmed.  The MEB referred the applicant's case to a PEB for evaluation.

7.  On 17 March 1997, an informal PEB considered and found the applicant unfit based on his chronic leg and back pain with S1 radiculopathy and degenerative disk disease.  The PEB rated the applicant as 20 percent disabled for these conditions; his hypertension was found to be not unfitting.  The PEB recommended separation with severance pay.  The applicant concurred.

8.  On 12 May 1997, the applicant was discharged from the GAARNG under the provisions of National Guard Regulation 600-200, paragraph 8-26j(i) with an honorable discharge, by reason of "Medically Unfit for Retention" after completing 16 years, 11 months, and 25 days of qualifying service for retired pay.

9.  The applicant provided a letter from the Serrato Spinal Center, dated 12 April 1999, in which a civilian doctor indicated that surgery was performed on the applicant in July 1997 which partially corrected his lumbosacral spine.  The civilian doctor further stated that the applicant was reassessed in April 1999 and was found to be 100 percent totally and permanently incapacitated to perform any type of gainful occupation.

10.  The applicant provided a service-connected disability letter from the DVA Regional Office, Columbia, South Carolina, dated 4 April 2008.  The document indicates that the applicant was granted a 60 percent disability rating for incertebral [sic] disc syndrome [intervertebral disc syndrome] and a 10 percent rating for fibromyalgia.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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.  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 his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

12.  Army Regulation 635-40 at chapter 3 provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer 


continue to reasonably perform because of a physical disability incurred or aggravated in service.  To be found unfit by reason of physical disability, individuals must be unable to perform the duties of grade, rank or rating.

13.  Army Regulation 635-40 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.

14.  Army Regulation 635-40, paragraph 4-19j, states that in making a determination whether a disability should be classified as being incurred during an armed conflict or due to an instrumentality of war, the following must be considered: 

	a.  The disability resulted from injury or disease received in the line of duty as a direct result of armed conflict and which itself renders the Soldier unfit.  A disability may be considered a direct result of armed conflict if—

		(1)  The disability was incurred while the Soldier was engaged in armed conflict, or in an operation or incident involving armed conflict or the likelihood of armed conflict; while the Soldier was interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force; or while the Soldier was escaping or attempting to escape from such prisoner of war or detained status.

		(2)  A direct causal relationship exists between the armed conflict or the incident or operation, and the disability.

	b.  The disability is unfitting, was caused by an instrumentality of war, and was incurred in the line of duty during a period of war as defined by law, which includes the current conflicts. 

17.  Title 38, U.S. Code, sections 1110 and 1131, 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.

18.  Section 641 of the National Defense Authorization Act for Fiscal Year 2008 (NDAA FY08), Public Law 110-181, provides special rules for CRSC eligible retirees with fewer than 20 years of service, to include members who have waived their retired pay in order to receive DVA disability compensation.  This expanded authority includes both Chapter 61 (Title 10, U.S. Code, sections 1201-1222) disability retirees and Temporary Early Retirement Authority (TERA) retirees.  However, a uniformed services Reserve Component retiree who receives retired pay for early retirement with physical disabilities under Title 10, U.S. Code, section 12731b, is specifically excluded under section 641.  Furthermore, the effective date for CRSC applicants who qualify based upon this expanded authority is either 1 January 2008, or the date of qualifying DVA disability award determined to be combat-related, whichever is later.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show that he was medically retired; however, he has not provided any evidence to show his medical conditions were not properly considered and rated.  

2.  The MEB found the applicant’s leg, back, and hypertension conditions did not meet retention standards and referred him to a PEB.  Evidence shows that the PEB properly considered the applicant's medical conditions.  He was found unfit due to chronic leg and back pain with S1 radiculopathy and degenerative disk disease. His hypertension was found to be not unfitting.  He was separated with severance pay, a decision with which he agreed.  The DVA determined that he met DVA standards for a 60 percent disability rating for his intervertebral disc syndrome; however, the DVA is free to evaluate the applicant as it sees fit based upon the level of impairment of his social or industrial adaptability and not based on his medical unfitness for further military service.  

3.  There is insufficient evidence to show the applicant’s PEB disability rating is incorrect or that his separation with severance pay was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to change his disability rating on his DA Form 199.



4.  There is no evidence and the applicant provided none to show his unfitting conditions were incurred as a direct result of armed conflict.  Therefore, he is not qualified for CRSC.

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)                                         AR20080014328



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ABCMR Record of Proceedings (cont)                                         AR20080014328



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