IN THE CASE OF:	  

		BOARD DATE:	        19 MAY 2009

		DOCKET NUMBER:  AR20080019068 


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 correction of his records to show he was medically retired instead of honorably separated.

2.  The applicant states that due to his desire to continue flying, he did not include all related injuries.  He trusted the physical evaluation board (PEB) to find all injuries that led to a finding of unfitness and ultimate discharge.    

3.  The applicant provides copies of various medical reports, treatment records, clinical records, chronological record of medical care, and other medical documents and charts, dated on miscellaneous dates throughout his entire career; and a copy of the Department of Veterans Affairs (DVA) rating decision, dated on 29 May 2008, in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, the applicant's record shows he was appointed as a warrant officer in the U.S. Army Reserve (USAR) and executed an oath of office on 28 October 1999.  He subsequently completed the Aviation Warrant Officer Basic Course and the OH-58D Warrior Aviation Qualification Course and was awarded military occupational specialty (MOS) 152D (OH-58 Helicopter Pilot).  

2.  On 4 September 2004, while serving in Tallafar, Iraq, the applicant’s helicopter was shot down and crashed.  He suffered an L1 Burst Fracture.  He 
was initially treated in theater and was subsequently transferred to Walter Reed Army Medical Center, Washington, DC, for further evaluation.  After a series of treatments, lasting 3 months, serial follow-up scoliosis surveys showed his fracture had stabilized without significant progression kyphosis.  He was recommended for referral to the physical disability evaluation system (PDES).

3.  On 22 August 2005, a medical evaluation board (MEB) convened at Walter Reed Army Medical Center, Washington, DC, and after consideration of clinical records, laboratory findings, and physical examinations, the applicant was found to have suffered a vertebrate fracture (L1 burst fracture) and backache.  The MEB recommended his referral to a PEB.  The applicant agreed with the MEB’s findings and recommendations and indicated that he did not desire to continue on active duty.  

4.  On 22 September 2005, a PEB convened at Walter Reed Army Medical Center, Washington, DC, and found the applicant was physically unfit due to his chronic low back pain, secondary to a burst fracture of L1.  Based on the review of the medical evidence of record, the PEB concluded the applicant's conditions prevented him from performing the duties in his grade and specialty.  He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5237 for chronic low back pain and awarded a 10 percent disability rating.  The PEB recommended a combined disability rating of 10 percent and the applicant's separation with severance pay.  

5.  On 29 September 2005, the applicant concurred with the PEB findings and recommendat4ions and waived his right to a hearing of his case.

6.  On 11 January 2006, the applicant was honorably discharged from the Army.  The applicant's DD Form 214 for this period of service shows he was discharged in accordance with paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of disability-severance pay. 

7.  The applicant provided a copy of the DVA rating decision, dated 29 May 2008, which shows he was awarded a 20 percent disability rating for Degenerative Disc Disease status post burst fracture, L1.

8.  In the processing of this case, on 10 February 2009 an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) legal advisor. The advisory official recommended no change in the applicant’s military records as the applicant did not provide an evidence of error by the PEB.  He also states that a subsequent different rating by the DVA does not constitute a PEB error.  
The PEB’s findings, supported by a preponderance of evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.  The advisory official further states:

	a.  when the 22 August 2005 MEB was completed, it contained two diagnoses: vertebrate fracture, L1, and backache.  The physical examination revealed normal strength, normal neurological findings, and pain with back movement (with worst pain after lying horizontal for more than four hours).  However, he was still able to run and bench press.  His range of motion was good with flexion at 132 degrees.  His physical profile listed only the back as limiting his duties and his commander’s performance letter, dated 18 August 2005, affirmed his back pain as his only limiting condition.  The applicant also listed occasional headaches and right shoulder problems on his medical forms, but his report of medical examinations did not find that these conditions were so severe, or required continued treatment, as to cause any performance limitations that resulted in these reported conditions not meeting medical retention standards.  On 15 September 2005 (erroneously shown as 15 October 2005), the applicant concurred with the MEB’s findings of only two conditions listed; 

	b.  the 22 September 2005 informal PEB found the applicant unfit for his back condition.  He was rated at 10 percent in accordance with VASRD 5235, vertebral fracture, for tenderness to palpation.  The PEB inadvertently reversed his flexion and extension ranges of motion on the DA Form 199 (PEB Proceedings) description.  The applicant concurred with the PEB’s findings and recommendations and waived his right to a formal hearing of his case.  Accordingly, he was honorably separated with entitlement to severance pay on 11 January 2006; and

	c.  the PEB considered all the applicant’s conditions that did not meet medical retention standards.  The PEB does not diagnose Soldiers’ conditions; that is the responsibility of the MEB.  The applicant indicated that the listing on his back condition was the only condition that materially affected his performance of duty. The PEB may only compensate for those conditions that cause the applicant to be unfitting for military duties.

9.  On 9 March 2009, the applicant was provided with a copy of this advisory opinion for information and possible comments prior to the Board's consideration of his case.  However, he did not respond within the time allotted.  

10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

11.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates uses the VASRD to rate unfitting disabilities.  Department of Defense Instruction 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Rating can range from 0 to 100 percent, rising in increments of 10 percent.

12.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board recommends Soldier's referral to a PEB.

13.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. 

14.  Title 38, U.S. 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 higher DVA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or 
responsibility for determining physical fitness for military service.  The DVA 
awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contends that he should have been medically retired because of other medical conditions that were not listed.  

2.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  

3.  The applicant sustained an unfortunate injury on 4 September 2004 during his service in Iraq that was determined to be in line of duty.  He subsequently underwent an MEB which diagnosed his unfitting medical conditions as an L1 burst fracture and backache and recommended he be referred to a PEB.  He concurred with this recommendation.  The PEB considered him for chronic low back pain secondary to a burst fracture of L1.  The PEB found his medical condition unfitting for further military service and recommended his separation with entitlement to severance pay.  Again, the applicant concurred with the findings and recommendations of the PEB.

4.  The applicant now states that he did not list all his medical conditions and that he trusted the PEB to find them.  However, he has provided no evidence to support this belief or to refute the PEB's rating.  The applicant had ample opportunities to make the PDES aware of other disabilities.  He did not do so.  Instead, he concurred with the decision of the informal PEB when he could have insisted on a formal PEB hearing.

5.  An award of a DVA rating does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and its own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA awards ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  

6.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB that he be separated with severance pay.  There is no error or injustice in this case.

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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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)                                         AR20080019068



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ABCMR Record of Proceedings (cont)                                         AR20080019068



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