IN THE CASE OF:	  

		BOARD DATE:	  3 February 2009

		DOCKET NUMBER:  AR20080016760 


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 record be corrected to show that instead of being discharged by reason of disability with severance pay on 21 May 1999, that he was medically retired on that same date.

2.  The applicant states, in effect, that he should have been medically retired instead of discharged because he had all of his medical problems in the Army, which were overlooked, but are documented in his record.

3.  The applicant provides copies of his service records, military medical records, and Department of Veterans Affairs (VA) medical records in support of his 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 record shows that after having served in the United States Naval Reserve and Army National Guard, he enlisted in the Regular Army and entered active duty in that status on 3 November 1992.  He was trained in, awarded, and served in military occupational specialty 92G (Food Service Specialist) and staff sergeant (SSG) is the highest grade he attained while serving on active duty.

3.  On 28 January 1999, a medical evaluation board (MEB) convened at Fort Drum, New York, to consider the applicant's case.  The MEB determined the applicant's left shoulder, superior labrum anterior posterior lesion was medically unacceptable under Army medical retention standards, and referred his case for consideration by a physical evaluation board (PEB).  The MEB also listed the additional conditions of major depressive disorder; alcohol dependence; and V partner relationship problem, which were determined to be medically acceptable under Army retention standards.

4.  On 26 February 1999, a PEB convened at Walter Reed Army Medical Center in Washington, D.C., to consider the applicant's case.  It determined that that his left shoulder condition was unfitting.  The PEB also found that the other diagnosed conditions listed on the MEB were not unfitting and as a result were not ratable.  The PEB recommended the applicant receive a 10 percent disability rating for his unfitting left shoulder condition and that he be separated by reason of disability with severance pay.

5.  On 9 March 1999, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case, and on 12 March 1999, the PEB findings and recommendations were approved by proper authority on behalf of the Secretary of the Army.

6.  On 21 May 1999, the applicant was honorably discharged in the rank of SSG by reason of disability with severance pay.  At the time of his discharge, he had completed a total of 11 years and 19 days of creditable active military service.

7.  The applicant provides a VA rating decision, dated 13 July 1999, which shows he was granted service connection for six medical conditions and granted a combined disability rating of 50 percent.  He was also granted service connection for five other medical conditions that each were rated at less than 10 percent disabling.  The VA determined that 10 other conditions were not service connected.  A VA rating decision, dated 30 August 2007, shows the applicant now has a combined VA disability rating of 100 percent and that he is receiving monthly compensation in the amount of $3,076.00 from the VA for all his service-connected disabilities.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.

9.  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.

10.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

11.  Title 38, U.S. 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 his record should be corrected to show he was medically retired instead of being medically discharge because all his problems began while he was in the Army was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met, and the applicant's rights were fully protected throughout the PDES process.  It further shows that a PEB ultimately determined the applicant was unfit for further service based on a left shoulder condition and granted him a 10 percent disability rating.  The PEB recommended the applicant's discharge by reason of disability with severance pay, and the applicant concurred with the findings and recommendations of the PEB.

3.  Although the evidence of record confirms the applicant was treated for multiple medical conditions while serving on active duty, only his left shoulder condition was determined to be unfitting for further service at the time of his PDES processing.  The other service-connected conditions the applicant suffered from that were evaluated by the MEB and PEB were determined not to be unfitting for further service.  As a result, in accordance with the governing law and regulation, they did not contribute to the disability rating assigned by the PEB.  As a result, there is an insufficient evidentiary basis to change the 10 percent disability rating assigned the applicant at the time of his discharge.

4.  The VA rating decisions and medical progress notes provided by the applicant confirm he is being treated for several service-connected conditions that support the higher rating assigned the VA, and that based on the change in these conditions, the disability rating assigned by the VA has increased from a combined rating of 50 percent in 1999 to a combined rating of 100 percent in 2007.  While both the Army and the VA use the VA Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army.

5.  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 his 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.

6.  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 his discharge, and he is now properly being rated, treated, and compensated for all his service connected conditions by the VA.

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 submit evidence that would satisfy this requirement.

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)                                         AR20080016760



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016760



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1