IN THE CASE OF:	  

		BOARD DATE:	       18 FEBRUARY 2009

		DOCKET NUMBER:  AR20080016134 


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 separation with disability severance pay be changed to physical disability retirement. 

2.  The applicant states the Army physical evaluation board (PEB) did not comply with Department of Defense (DOD) directives and inappropriately medically discharged him.

3.  The applicant provides a statement from a Texas Veteran Commission counselor, a copy of his 2008 DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his July 2008 Department of Veterans Affairs rating documents, a copy of his January 2008 Army PEB proceedings, and evidence of supplemental security income from the Social Security Administration.

4.  The statement from the Texas Veteran Commission counselor essentially argues the Army failed to comply with the DOD directive when it failed to consider the severity of the applicant’s various medical conditions, including his post-traumatic stress disorder.  The counselor concluded the applicant should have been medically retired and placed on the temporary disability retired list (TDRL) with a disability rating of at least 70 percent if not 100 percent.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant served an initial period of active duty with the Regular Army between July 2000 and July 2004.  He was released from that period of military service with an honorable characterization of service at the completion of his initial enlistment contract.

2.  On 21 July 2005 the applicant enlisted in the Regular Army for a period of 3 years and 16 weeks and returned to active duty.  During this enlistment he was trained and performed duties as a water treatment specialist.

3.  On 18 December 2007 the applicant underwent a medical evaluation board (MEBD).  The MEBD narrative summary accompanying the MEBD proceedings noted the applicant began having some back pain during his initial enlistment period.  The applicant indicated that his back bothered him but it did not get really bad until he fell in May 2002.  He was treated with nonsteroidals and muscle relaxers.  He deployed to Iraq between September 2002 and August 2003.  Upon returning from Iraq he underwent x-rays, which were unremarkable but a magnetic resonance image showed a herniated disc.  The medical summary noted the applicant remained on a physical profile until his separation from active duty in July 2004.  The pain gradually resolved and in July 2005 the applicant enlisted and returned to active duty.  The applicant was treated periodically for his back condition but was able to deploy to Iraq again in March 2007.  His back pain worsened due to wearing body armor and standing in military vehicles while serving as a gunner.  He redeployed in July 2007 and was subsequently referred for an MEBD.  The MEBD concluded the applicant’s herniated disc (MEBD diagnosis 1) and degenerative disc disease (MEBD diagnosis 1) were medically unacceptable and thus failed to meet retention standards.  The applicant was referred to a PEB.

4.  The MEBD also noted the applicant suffered from myopia (MEBD diagnosis 3), astigmatism (MEBD diagnosis 4), headaches (MEBD diagnosis 5), ankle joint pain (MEBD diagnosis 6) and esophageal reflux (MEBD diagnosis 7).  However, each of these conditions was determined to be medically acceptable and as such met retention standards.

5.  On 20 December 2007 the applicant acknowledged the findings and recommendation of the MEBD and certified that the MEBD accurately covered all of his current diagnoses.  He also acknowledged that the PEB may determine that some or all of the diagnoses listed in his MEBD were not unfitting.

6.  An informal PEB convened on 26 December 2007 and concluded the applicant’s herniated disc and degenerative disc disease interfered with the applicant’s ability to tolerate individual body armor and to lift or carry a combat load.  As such the PEB found the applicant unfit, rated his disability at 10 percent, and recommended he be discharged with severance pay.  The PEB concluded that MEBD diagnoses 3 through 7 were not unfitting and therefore not rated.  It was noted that these conditions met medical retention standards and did not pose significant physical profile restrictions.  The PEB findings and recommendation were approved and the applicant concurred, waiving his entitlement to a formal hearing.

7.  On 25 January 2008 the applicant was discharged due to physical disability with severance pay in the amount of $33,993.60.

8.  In July 2008 the applicant was notified that the Department of Veterans Affairs (VA) had determined the applicant suffered from post-traumatic stress disorder, granting him a 50 percent disability rating for that condition effective 26 January 2008.  They also determined that he suffered from lumbar spine degenerative disc disease, left lower extremity radiculopathy, and right lower extremity radiculopathy.  Each of these conditions was independently rated at 10 percent.  The applicant’s received an overall or combined rating of 70 percent by the VA.

9.  Documents provided by the applicant show that he received Retirement, Survivors and Disability Insurance in the amount of $1031.00 for the months of August and September 2008.

10.  Title 38, U.S. Code, sections 1110 and 1131, permits 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.

11.  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 rated at least 30 percent.

12.  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 rated at less than 30 percent.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that the temporary disability retired list (TDRL) is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208.  In addition, the condition must be determined to be temporary or unstable.

DISCUSSION AND CONCLUSIONS:

1.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

2.  There is no available evidence that the applicant's disability was improperly rated.  His separation with severance pay was in compliance with law and regulation.

3.  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.

4.  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.



      ___________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)                                         AR20080016134



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ABCMR Record of Proceedings (cont)                                         AR20080016134



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