IN THE CASE OF:	  

		BOARD DATE:	  12 February 2009

		DOCKET NUMBER:  AR20080015800 


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, reconsideration of her earlier petition to the Board requesting her record be corrected by voiding her 17 June 2002 discharge by reason of physical disability with severance pay and to show that she was instead medically retired on that same date. 

2.  In a letter to a Member of Congress, the applicant states, in effect, that given she was misdiagnosed and suffered harassment, she should be excused from signing the paperwork that allowed her to be separated without retirement benefits.  She states that she regrets everyday that she did not stay on and fight for retirement.  She also states that the Board erroneously indicated that it took her four years to gain her unemployability and that her condition worsened after a suicide attempt, which she claims is a misstatement of the facts.  She states she has been with her husband for five years and has never attempted suicide.  

3.  The applicant provides a self-authored statement submitted through a Member of Congress in support of her reconsideration request.  She also resubmits medical treatment records that were available to and considered by the Board during its original review of the case.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2008009756, on 13 August 2008.
2.  The applicant provided a self-authored statement submitted through a Member of Congress as new evidence/argument that will be considered by the Board.

3.  During its original review of this case, the Board found that the applicant agreed with the Physical Evaluation Board (PEB) medical findings, disability rating, and recommendation that she be separated with severance pay at the conclusion of her processing through the Army's Physical Disability Evaluation System (PDES).  The Board noted in part, "On 12 May 2008, the VA awarded the applicant individual unemployability status.  In that rating decision it was stated 'Treatment reports cited above show that you have increased memory problems and cognitive function due to anoxia from a suicide attempt.'"

4.  On 4 February 2002, a Medical Evaluation Board (MEB) convened at Darnell Army Community Hospital, Fort Hood, Texas, to consider the applicant's case.  The MEB found the applicant to not meet medical retention standards due to her right tarsal tunnel syndrome, low back pain, and bilateral knee pain.  On 8 March 2002, the applicant concurred with the MEB findings and recommendation.  

5.  On 20 March 2002, the applicant’s case was evaluated by a PEB which convened at Fort Sam Houston, Texas.  The PEB found that the applicant was physically unfit and recommended a disability rating of 20 percent (%), 10% for right tarsal tunnel syndrome, 10% for chronic mechanical low back pain, without neurologic abnormality, and 0% for bilateral knee pain.  The PEB rated the applicant's bilateral knee pain as slight/occasional not requiring daily narcotic therapy in accordance with United States Army Physical Disability Agency (PDA) Policy/Guidance Memorandum #13, dated 12 April 2000, Subject:  Rating Pain. The PEB finally recommended the applicant's separation with severance pay.  

6.  On 21 March 2002, the applicant concurred with the PEB findings and waived a formal hearing of her case, and the PEB findings and recommendations were approved by proper authority on behalf of the Secretary of the Army.

7.  On 17 June 2002, the applicant was honorably discharged under the provisions of paragraph 4-24b (3), Army Regulation 635-40, by reason of physical disability with severance pay.  The DD Form 214 she was issued at the time confirms she completed a total of 2 years, 8 months and 20 days of active military service.  

8.  The evidence of record shows the Department of Veterans Affairs (VA) initially evaluated the applicant on 27 June 2002, and granted her a combined disability rating of 40%.  However, the VA granted the same disability ratings for the unfitting conditions that were evaluated by the PEB (10% for right tarsal tunnel syndrome; 10% for chronic mechanical low back pain, without neurologic abnormality (lumbosacral strain); and 0% for bilateral knee pain).  The additional percentage was based on additional ratings granted for service connected conditions that were not considered unfitting for military service during her PDES processing.  

9.  On 12 May 2006, the VA reevaluated the applicant's record based on her request for an Increased Compensation Based on unemployability
(VA Form 21-8940) and granted her entitlement to individual unemployability and basic eligibility to Dependent's Educational Assistance.  In this decision, the VA referred to medical treatment records from the Central Texas Health Care System, dated between 13 April 2005 and 6 January 2006, which showed the applicant suffered from increased memory problems and cognitive function due to anoxia from a suicide attempt.  

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES 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.

11.  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.  Any non-ratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable. 

12.  Title 38, United States Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, 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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her disability discharge should be changed to a medical retirement because she was misdiagnosed and suffered from harassment was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence also shows the applicant's PDES processing was accomplished in accordance with the applicable law and regulation, and that the applicant concurred with the findings and recommendations of the PEB.  All requirements of law and regulation were met and her rights were fully protected throughout her disability processing.  

3.  By regulation the mere presence of an 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.  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.  

4.  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, the applicant was properly compensated with severance pay at the time of her discharge, and she is now properly being rated, treated, and compensated for all her service connected conditions by the VA.  

5.  The applicant is advised that 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 her 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.  In addition, the VA is the appropriate agency to seek care and compensation for service connected conditions that were not unfitting for further military service at the time of processing through the Army's PDES.  
6.  Furthermore, the applicant’s contention that the Board erred when it indicated that she attempted suicide was also considered.  However, this comment was simply a restatement of information documented in the VA’s evaluation, dated 
12 May 2006, wherein the VA indicated that according to medical treatment records used during this evaluation the applicant's condition had worsened due to a suicide attempt.  This was not a judgment made by the Board or by Army medical personnel, it was simply a statement of what is documented in the VA record.  

7.  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 satisfy this requirement or to provide sufficient evidence to support amendment of the original Board decision in this case. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20080009756, dated 13 August 2008.




      _______ _ 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)                                         AR20080015800



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080015800


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1