IN THE CASE OF:	  

		BOARD DATE:	  7 July 2009

		DOCKET NUMBER:  AR20090000741 


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, correction of his records to show he was retired based on permanent disability with a disability rating of 70 percent.

2.  The applicant states, in effect, he was injured when he was thrown from an Army 2 1/2-ton truck and landed with his back on a stump while on a division field training exercise (FTX) at Fort Hood, Texas, in March 1973.

	a.  The applicant states that he was taken to installation medical facilities, admitted to Darnall Army Hospital on 22 March 1973, placed in traction, and advised he would require back surgery to fuse some joints, but he refused the surgery.

	b.  The applicant states that a Veterans Administration (VA) representative advised him he was going to be medically discharged and given a 70-percent disability rating.  He also states that after receiving advice from the Division Adjutant General and Division Commander, he was allowed to remain on active duty.

3.  The applicant provides, in support of his application, copies of three DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) with effective dates of 11 May 1961, 6 June 1967, and 15 March 1973; two DD Forms 214 (Report of Separation from Active Duty) with effective dates of 7 October 1976 and 29 August 1979; a DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 31 January 1985; a VA Regional Office, Seattle, Washington, letter, dated 29 August 2005, with identified enclosures; and a Headquarters, U.S. Army Physical Disability Agency (USAPDA), Combat-Related Special Compensation (CRSC), Alexandria, Virginia, memorandum, dated 24 October 2005.

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 enlisted in the Regular Army (RA) and entered active duty for a period of 3 years on 22 July 1958.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 526.10 (Water Supply Specialist).  The applicant was honorably released from active duty on 11 May 1961 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining military service obligation.  At the time he had completed 2 years, 9 months, and 20 days of net active service.

3.  The applicant enlisted in the RA and reentered active duty on 7 July 1961.  He continued to serve on active duty in the RA and he was awarded primary MOS 76Y (Armorer/Unit Supply Specialist).  The applicant served in the Republic of Korea (ROK) from 16 September 1962 through 25 September 1963, the Republic of Vietnam from 21 December 1965 through 15 December 1966, the ROK from 21 March 1968 through 9 April 1969, the Federal Republic of Germany from 26 October 1973 through 21 July 1977, and in Saudi Arabia from 16 August 1980 through 13 August 1981.  The highest grade the applicant attained was master sergeant (E-8).

4.  A Standard Form 88 (Report of Medical Examination), dated 9 March 1961, administered for the purpose of the applicant’s separation physical examination, shows in the Clinical Evaluation section, item 38 (Spine, Other Musculoskeletal), the examining physician placed an "X" in the "Normal" column.  This document also shows the examining physician found the applicant qualified for separation.
5.  A Standard Form 88, dated 18 August 1964, administered for the purpose of the applicant’s periodic physical examination, shows in the Clinical Evaluation section, item 38, the examining physician placed a checkmark in the "Normal" column.  This document also shows the examining physician found the applicant qualified for retention on active duty.

6.  A Standard Form 88, dated 19 October 1970, administered for the purpose of the applicant’s tri-annual physical examination, shows in the Clinical Evaluation section, item 38, the examining physician placed a checkmark in the "Normal" column.  This document also shows the examining physician found the applicant qualified for active duty commensurate with his age, rank, experience, and branch of service.

7.  A Standard Form 88, dated 17 January 1979, administered for the purpose of the applicant’s retirement physical examination, shows in the Clinical Evaluation section, item 38, the examining physician placed a checkmark in the "Normal" column.  This document also shows the examining physician found the applicant qualified for retirement.

8.  A Standard Form 88, dated 13 July 1982, administered for the purpose of the applicant’s periodic physical examination, shows in the Clinical Evaluation section, item 38, the examining physician placed a mark in the "Normal" column.  This document also shows the examining physician found the applicant qualified for duty.

9.  A Standard Form 88, dated 2 October 1984, administered for the purpose of the applicant’s retirement physical examination, shows in the Clinical Evaluation section, item 38, the examining physician placed a checkmark in the "Normal" column.  This document also shows the examining physician found the applicant qualified for retirement.

10.  The applicant was honorably retired on 31 January 1985 under the provisions of Title 10, U.S. Code, section 3914, for length of service.  At the time he had completed 26 years, 4 months, and 14 days of total active service; 1 month and 25 days of total inactive service; and 26 years, 6 months, and 9 days of total service for basic pay purposes.

11.  There is no evidence that the applicant was referred to a medical evaluation board (MEBD) or physical evaluation board (PEB).

12.  In support of his application, the applicant provides the following documents.

	a.  Copies of six DD Forms 214 that document the applicant’s record of service spanning the period from 22 July 1958 through 31 January 1985.

	b.  VA Regional Office, Seattle, Washington, letter, dated 29 August 2005, with identified enclosures that include copies of VA award letters, rating decisions, rating code sheet, and service medical records (SMR) pertaining to the applicant.

		(1)  The VA award letters, rating decisions, and rating code sheet, in pertinent part, show the applicant’s degenerative joint disease lumbosacral spine service-connected condition is rated 20-percent disabling and that he received an overall or combined evaluation of 30 percent from the VA.

		(2)  The applicant’s SMR, in pertinent part, document the applicant’s symptoms, diagnoses, and treatments pertaining to his lower back pain (LBP) and, in particular, contain the following documents:

		(a)  a DA Form 8-274 (Medical Condition - Physical Profile Record), dated 18 August 1964, that shows the applicant was issued a permanent profile pertaining to his eyesight and shows the medical official found the applicant medically qualified for retention on active duty;

		(b)  a Standard Form 600 (Chronological Record of Medical Care), dated 6 November 1970, that shows the applicant was seen at the Out-Patient Clinic, U.S. Army Hospital, Bad Kreuznach (Germany).  He complained of a history of back pain beginning in 1960 when he jumped off a tractor and his legs collapsed, he was hospitalized at that time, there was no surgery or other corrective measures that the applicant was aware of, and there was no further trouble until he returned from Korea in 1969 when he was hospitalized for severe back pain and he was unable to walk;

		(c)  a Standard Form 513 (Consultation Sheet), dated 22 March 1973, that shows the applicant was seen at the Orthopedic Clinic, Darnall Army Hospital, Fort Hood, Texas.  He had a long history of LBP; and complained of having acute pain with radiation along both legs;

		(d)  a DA Form 3349 (Medical Condition - Physical Profile Record), dated 30 March 1973, that shows the applicant was issued a 30-day temporary physical profile for limited duty due to chronic lumbosacral strain;

		(e)  a DA Form 3349, dated 10 November 1976, that shows the applicant was issued a 10-day temporary physical profile for limited duty due to back pain;

		(f)  a Standard Form 600, dated 31 December 1981, that states, in pertinent part, the applicant has a past history of numerous episodes of LBP since 1973; and

		(g)  a Standard Form 600, dated 31 March 1982, that shows the medical official serving in the Physical Therapy Section, Madigan Army Medical Center, Tacoma, Washington, instructed "Discontinue patient from physical therapy after [indecipherable entry] treatments."

   c.  Headquarters, USAPDA, CRSC, Alexandria, Virginia, memorandum, dated 24 October 2005, with enclosures, including a DD Form 2860 (Application for CRSC), dated 27 September 2005.

		(1)  The DD Form 2860, item 13 (Diagnosis), block g (Briefly Describe the Specific Events/ Actions From Which You Incurred The Disability.  Do Not Simply Describe Your Billet.  How Was The Disability Caused By The Combat-Related Circumstances You Entered For Item c Above?), shows the applicant entered, "I was traveling into our command post area in a 2 1/2-ton truck as we were attacked.  I attempted to get out of the vehicle as it came to an abrupt stop, throwing me to the ground."  This document also shows the applicant indicated the incident occurred on 20 March 1973 at Fort Hood, Texas.
 
 		(2)  The USAPDA, CRSC, letter, dated 24 October 2005, shows the applicant’s request for CRCS was disapproved; his traumatic arthritis (rated by the VA at 20 percent) and inflammation of sciatic nerve (rated by the VA at 10 percent) are service related disabilities.  However, due to the lack of supporting documentation, the USAPDA, CRSC, was not able to approve them as combat-related in accordance with the Department of Defense (DOD) CRSC Program Guidance, dated 15 April 2004.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets 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.  Chapter 3 (Policies), paragraph 3-1 (Standards of unfitness because of physical disability), of this Army regulation, in pertinent part, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  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.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  These standards include guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer Soldiers to an MEBD.

14.  Paragraph 4-10 (The MEBD) of Army Regulation 635-40 provides that medical evaluation boards 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 qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

15.  Paragraph 4-20 (Informal board) of Army Regulation 635-40 provides that each case is first considered by an informal PEB.  This paragraph states, in pertinent part, an informal board must ensure that each case considered is complete and correct.  The rapid processing intended by the use of informal boards must not override the fundamental requirement for detailed and uniform evaluation of each case.  All evidence in the case file must be closely examined and additional evidence obtained, if required.

16.  Title 10, U.S. Code, chapter 61, 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 USAPDA, under the operational control of the Commander, U.S. Army Human Resources Command, Alexandria, Virginia, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Title 10, U.S. Code, chapter 61, and in accordance with DOD Directive 1332.18 (Separation or Retirement for Physical Disability) and Army Regulation 635-40.

17.  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 fitness determination/disability rating based on the same impairment.  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 records should be corrected to show he was retired based on permanent disability with a disability rating of 70 percent because he was injured when he was thrown from an Army 2 1/2-ton truck and landed with his back on a stump while on a division FTX at Fort Hood, Texas, in March 1973.

2.  The applicant’s SMR show the first instance of the applicant being treated for back pain was on 6 November 1970, at which time he complained of a history of back pain beginning in 1960 (i.e., when he jumped off a tractor and his legs collapsed) and he also stated that he had been hospitalized for severe back pain when he returned from Korea in 1969.  The applicant’s SMR are absent any evidence that he was treated for back pain in 1960 or that he was hospitalized for severe back pain in 1969.  However, the applicant’s SMR confirm that the applicant was seen at the Orthopedic Clinic, Darnall Army Hospital, Fort Hood, Texas, on 22 March 1973 when he complained of having acute pain with radiation along both legs.

3.  The evidence of record shows that the Standard Forms 88 that document the applicant’s medical examinations conducted over the course of his military service (i.e., on 9 March 1961, 18 August 1964, 19 October 1970, 17 January 1979, 13 July 1982, and 2 October 1984) are absent any evidence of spine or other musculoskeletal abnormality or that the applicant was found unfit for military service.  In fact, the applicant was consistently found qualified for active duty service during this period and found qualified for retirement on 2 October 1984.

4.  The applicant’s retirement under the provisions of Title 10, U.S. Code, section 3914, for length of service was voluntary, administratively correct, and in compliance with applicable regulations.

5.  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 disability rating is a prerogative exercised within the policies of that agency.

6.  The applicant’s contention that his records should be corrected to show he was retired based on permanent disability with a disability rating of 70 percent was carefully considered.  There is no evidence of record that shows the applicant was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Thus, there was no basis for referring the applicant to an MEBD and/or PEB.  Moreover, the applicant was found qualified for retirement based on length of service.  Therefore, there is insufficient evidence to support correction of the applicant’s records in this case.

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)                                         AR20090000741



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ABCMR Record of Proceedings (cont)                                         AR20090000741



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