IN THE CASE OF:	  

		BOARD DATE:	        19 FEBRUARY 2009

		DOCKET NUMBER:  AR20080014498 


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 her discharge with disability severance pay be changed to a retirement due to permanent physical disability.

2.  The applicant essentially states that the Department of Veterans Affairs (DVA) recognized her service-related disabilities effective the day after she was discharged from the Army.  

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty), a 15 August 2005 Rating Decision and a 6 May 2008 Decision Review Officer Decision from the DVA, 53 pages of documents related to her Army Physical Disability Evaluation System (PDES) processing, and 630 pages of records copied from a DVA claims folder in support of this 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 she enlisted in the Regular Army on 25 May 1999.  She completed basic and advanced individual training and was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).  She served a tour in Germany from 13 January 2000 to 9 January 2002, then was reassigned to Fort Bragg, North Carolina.

3.  On 13 April 2003, the applicant was issued a physical profile for bilateral knee pain.  The DA Form 3349 (Physical Profile) that was issued to her shows that her unit commander determined that her profile required a change in her duty assignment, and that she should not be retained in the Army.

4.  The applicant's commanding officer completed a Commander's Performance Statement on 5 May 2003 in which he essentially stated that the applicant was a competent Soldier who knew her job, but that her current physical condition, primarily, her knee problems, would prevent her from serving in a combat engineer battalion due to the physical requirements of soldiering and her MOS.  He also recommended that she not be retained in the Army.

5.  On 5 November 2003, a Medical Evaluation Board (MEB) diagnosed the applicant with bilateral knee pain that was incurred while entitled to base pay and did not exist prior to service.  It also determined that the applicant's left foot toe pain, gastrointestinal symptoms, sinusitis, right shoulder pain, and low back pain were not disqualifying.  It further recommended that the applicant be referred to a Physical Evaluation Board (PEB).  The applicant agreed with the MEB's findings and recommendations on 20 November 2003.

6.  On 4 December 2003, an informal PEB found the applicant physically unfit due to bilateral knee pain with a 10 percent disability rating, and recommended that she be separated with severance pay if otherwise qualified.  It also confirmed that the applicant's left foot toe pain, gastrointestinal symptoms, sinusitis, right shoulder pain, and low back pain were not disqualifying.  The applicant concurred with the PEB's findings and recommendations and waived a formal hearing of her case.  

7.  On 1 March 2004, the applicant was honorably discharged from the Regular Army due to physical disability, and was paid $18,141.00 in disability severance pay.  

8.  The applicant provided correspondence from the DVA which essentially shows that she was granted service connection for Post-Traumatic Stress Disorder (PTSD) with an evaluation of 50 percent effective 2 March 2004 for a sexual assault which occurred in December 2001.  This correspondence also shows that she was granted service connection for a hiatal hernia, gastrointestinal reflux disease, and gastritis with a 30 percent rating, and right and left knee patellofemoral syndrome with a 10 percent rating for each knee.

9.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) of Army Regulation 40-501 essentially provides, in pertinent part, that Soldiers with conditions listed in this chapter will be referred for disability processing.

10.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  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 DVA, 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 civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.  Furthermore, unlike the Army, the DVA 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 at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge with disability severance pay should be changed to a retirement due to permanent physical disability.

2.  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.

3.  The only apparent significant medical condition that the applicant possessed with a physical profile and while on active duty was for bilateral knee pain, and her other medical conditions were found not to be disqualifying during her PDES processing.  The fact that she was awarded a disability rating by the DVA for PTSD for a sexual assault in December 2001 was noted.  While it is truly regretful that this incident occurred while she was on active duty, there is no evidence that she sought mental health treatment for this incident while on active duty.  There is also no evidence which shows that this incident interfered with her ability to perform her duties and responsibilities.  

4.  The fact that the applicant was assigned a higher disability rating by the DVA for multiple conditions was also noted.  However, this fact does not establish an error or injustice in the disability rating rendered by the Army.  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 DVA, 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 civilian employability.  

5.  In view of the foregoing, there is no basis for changing the applicant's discharge with disability severance pay to a retirement due to permanent physical disability.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during her military service.  The applicant and all Americans should be justifiably proud of her honorable service in arms.




      _______ _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)                                         AR20080014498



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014498



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1