IN THE CASE OF:	  

		BOARD DATE:	       10 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017522 


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, an increase in the disability rating assigned to him by the Army at the time of his retirement.

2.  The applicant states that the Department of Veterans Affairs (VA) awarded him a 20 percent disability rating for a combat-related injury (lumbosacral strain.)

3.  The applicant provides in support of his application an undated statement from a retired master sergeant and a copy of a letter dated 24 September 2008 from the VA notifying him that he has been awarded compensation benefits rated at 70 percent.

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.  On 24 June 1974, the applicant enlisted in the Oklahoma Army National Guard for 6 years in the pay grade of E-1.  He successfully completed his training as a radio relay and carrier attendant.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) for 1 year on 5 September 1979 and he reenlisted in the USAR for 6 years on 23 July 1980. He reenlisted in the USAR again for 6 years on 14 June 1986.

4.  Orders were published on 3 November 1988, ordering the applicant to active duty in a USAR Active Guard Reserve status effective 4 December 1988.  He reenlisted in the USAR for 3 years in a USAR Active Guard Reserve status on 5 November 1991.

5.  On 13 August 1992, a medical evaluation board (MEBD) convened to determine whether the applicant should be referred to a physical evaluation board (PEB) for evaluation.  During the evaluation, the MEBD noted that the applicant had a history of migraine headaches, chest pain, hypertension, asthma, chronic sinus trouble, and low back pain.  According to the MEBD proceedings, the applicant was diagnosed with depressive disorder, not otherwise specified; psychological factors affecting his physical condition; personality disorder, not otherwise specified; and migraine headaches, history of hypertension.  The MEBD recommended that the applicant be referred to a PEB for evaluation.

6.  An informal PEB convened on 2 October 1992 to determine the applicant's fitness for retention in the USAR Active Guard Reserve.  The PEB found him to be unfit for depressive disorder, not otherwise specified, with psychological factors affecting physical conditions.  The PEB found the applicant physically unfit for continued service and recommended that he be assigned a 10 percent disability rating and separated with severance pay.  The applicant apparently nonconcurred with the findings and recommendation made by the PEB.

7.  A formal PEB convened on 6 November 1992 to determine the applicant's fitness for retention in the USAR Active Guard Reserve.  The PEB found him to be unfit for depressive disorder, not otherwise specified, with psychological factors affecting physical conditions.  The PEB noted that the applicant, despite psychotherapy and medication, continues to have symptoms of depression, social and industrial impairment.  The PEB further noted that the applicant's condition prohibited him from satisfactory performance of duties required by his grade and military occupational specialty.  The PEB found the applicant physically unfit for continued service and recommended that he be assigned a 30 percent disability rating and permanently retired by reason of physical disability.  The applicant concurred with the findings and recommendation made by the PEB.
8.  Accordingly, on 18 December 1992, the applicant was honorably retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24a(1), by reason of physical disability with a 30 percent disability rating.

9.  The undated statement that the applicant submits in support of his application is authored by a retired master sergeant to contends that in March 1991, the applicant and another Soldier were carrying a large grey plastic container packed with a "VT-100 computer system" up two flights of stairs to the battle staff room in preparation for the weekend exercise when the other Soldier lost his grip on the box and the applicant strained his back to keep the box from falling down the stairs.  The master sergeant stated that he transported the applicant to the base hospital and that he was later transferred to the VA Medical Center in Oklahoma City by ambulance.  The master sergeant went on to state that the applicant had a magnetic resonance image [MRI] of his back which shows a bulging disc at the L4/L5 region with a disc bulging on the left side into the sciatic nerve.  The master sergeant stated that the applicant's injury caused weakness in his lower back and a lot of pain in his buttocks and both legs.  According to the master sergeant, the applicant was also experiencing a decrease of feeling in both of his legs.  The master went on to name another individual who he contends can attest to the incident and to provide information regarding the applicant's background.

10.  On 24 September 2008, the applicant was notified by the VA Veterans Service Center Manager that VA records disclose that he has been awarded compensation benefits rated at 70 percent effective 1 December 2007 for the following conditions:  30 percent for residuals of right eye injury 10/200 vision; 30 percent for depression; 20 percent for lumbosacral strain; 10 percent for hypertension; and 10 percent for migraine headaches.

11.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

12.  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.  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 VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the disability rating assigned to him by the Army at the time of his retirement should be increased based on the 20 percent disability rating that he was awarded by the VA for lumbosacral strain.

2.  However, while the applicant's records do indicate that he had a history of low back pain, his records do not show that his low back pain was an unfitting condition at the time of his MEBD or PEB.

3.  He was evaluated by an MEB, an informal PEB, and a formal PEB and he was found to be unfit due to depressive disorder, not otherwise specified, with psychological factors affecting physical conditions.  He was retired by reason of physical disability and assigned a 30 percent disability rating as a result of the formal PEB's findings and recommendation.

4.  The applicant's 20 percent disability rating awarded by the VA for lumbosacral strain has been noted.  However, in accordance with the applicable law, 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.

5.  In order to justify correction of a military record the applicant must show, 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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080017522



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ABCMR Record of Proceedings (cont)                                         AR20080017522



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