IN THE CASE OF:	  

		BOARD DATE:	  	  29 January 2009

		DOCKET NUMBER:  AR20080017387 


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 the U.S. Army recognize his Department of Veterans Affairs (VA) disability rating of 100 percent for his service-connected disability and correction of his record to show he was medically retired from the U.S. Army.

2.  The applicant states, in effect, the U.S. Army granted him a disability rating of 20 percent and he was discharged with severance pay.  He also states that about 6 years ago officials in Senator Trent L___’s office told him that the Army would medically retire him when he received a 100 percent VA disability rating, and that the VA has now granted him a disability rating of 100 percent.

3.  The applicant provides no additional documentary evidence 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 military personnel records show he enlisted in the Army National Guard of the United States and Army National Guard of Mississippi (MSARNG) on 30 November 1989.  On 13 March 1990, he was ordered to active duty for training (ADT) and upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 76V (Materiel Storage and Handling Specialist).  The applicant was released from ADT on 11 July 1990.  On 13 April 1993, MOS 92A (Automated Logistics Specialist) was designated as his primary MOS (PMOS).  The applicant was honorably discharged from the MSARNG and as a Reserve of the Army on
31 January 1995.

3.  The applicant’s military personnel records show he enlisted in the Regular Army (RA) and entered active duty for a period of 3 years on 1 February 1995.  

4.  The applicant's military personnel records show that on 25 November 1996 the 4th Infantry Division MOS/Medical Retention Board (MMRB) evaluated the applicant’s ability to perform the physical requirements of his PMOS 92A1O.  The MMRB determined that limitations imposed by the applicant’s permanent profile preclude retaining and/or reclassification into an MOS in which the Army had a requirement.  The MMRB approving authority approved the findings and recommendations of the MMRB, directed the applicant be scheduled for a Medical Evaluation Board (MEB), and that his case be forwarded to a Physical Evaluation Board (PEB) regardless of a MEB’s findings and recommendations.

5.  The applicant’s military personnel records are absent a complete copy of his MEB and PEB proceedings.  

6.  The applicant’s military personnel records contain a DA Form 5893-R (PEBLO [Physical Evaluation Board Liaison Officer] Counseling Checklist/Statement), dated 11 July 1997, and reverse side of a DA Form 199 (PEB Proceedings), dated 11 July 1997.  The DA Form 5893-R, in pertinent part, shows the applicant was counseled on the Temporary Disability Retired List (TDRL).  The DA Form 199 shows the applicant acknowledged he had been advised of the findings and recommendations of the PEB, indicated he did not concur, and demanded a formal hearing with personal appearance.

7.  The applicant’s military personnel records contain a Record of Inpatient Treatment, dated 27 October 1997, that shows he was admitted on 3 September 1997 with diagnoses of acquired spondylolisthesis, degeneration of lumbar or lumbosacral intervertebral disc, and lesion of ulnar nerve.  This document also shows a MEB and PEB met with him as an out-patient and recommended separation of the applicant from service with severance pay (20 percent).

8.  The applicant’s military personnel records contain a copy of Headquarters,
III Corps and Fort Hood, Fort Hood, Texas, Orders 213-0236, dated 1 August 1997, that show the applicant was assigned to the U.S. Army Transition Center, Fort Hood, Texas, with a reporting date of 3 September 1997, for separation processing and discharge from the RA.  These orders also show, in pertinent part, that the applicant was authorized disability severance pay in pay grade private first class (PFC/E-3) based on 2 years, 11 months, and 2 days of service and a percentage of disability of 20 percent.

9.  The applicant's military personnel records contain a copy of a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows the applicant entered this period of active duty on 1 February 1995 and was honorably discharged on 3 September 1997 in accordance with the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), based on disability with severance pay.  This document also shows that at the time of his discharge the applicant had completed 2 years, 7 months, and 3 days net active service this period and
3 months and 29 days of total prior active service.  Item 18 (Remarks), in pertinent part, contains the entry “DISABILITY SEVERANCE PAY--$7179.00.”

10.  Chapter 61, Title 10, U. S. Code, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, Alexandria, Virginia, is responsible for operating the Physical Disability Evaluation System and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, Title 10 U. S. Code, and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.  

11.  Army Regulation 635-40, in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

12.  Title 38, U. S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish 

error or injustice in the Army rating.  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 VA, 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 a different disability rating based on the same impairment.  

13.  Furthermore, unlike the Army, the VA 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 VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his VA disability rating of 100 percent for his service-connected disability should be recognized by the U.S. Army and his records corrected to show that he was medically retired from the U.S. Army.

2.  The evidence of record shows the applicant was evaluated by an informal PEB, counseled by a PEBLO, advised of the findings and recommendations of the PEB, indicated he did not concur with the findings and recommendations of the PEB, and demanded a formal hearing with personal appearance before a PEB.  The evidence of record also shows that a PEB subsequently met with the applicant as an out-patient and recommended separation of the applicant from service with severance pay (20 percent).

3.  There is no evidence to show that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.

4.  The evidence of record shows the applicant was discharged from the Army on 3 September 1997 based on disability with severance pay and a percentage of disability of 20 percent.  The evidence of record also shows the applicant was 

credited with completing 2 years, 11 months, and 2 days of total active service at the time he was discharged.  Thus, the evidence of record indicates the applicant was not entitled to medical retirement.

5.  The applicant failed to provide any official documentary evidence regarding his VA disability rating for service-connected disability.  Notwithstanding, there is no legislative or regulatory provision that requires the U.S. Army to medically retire a former service member (FSM) based on a Department of VA disability rating of 100 percent of the FSM for a service-connected disability.

6.  The evidence of record shows that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The VA (and some other government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other government agency), in its discretion, awarded the applicant a higher disability rating than that which he received from the U.S. Army, is a prerogative exercised within the policies of that agency.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records to show an adjustment to his disability rating and/or that he was medically retired from the U.S. Army.

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)                                         AR20080017387



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ABCMR Record of Proceedings (cont)                                         AR20080017387



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