BOARD DATE: 6 August 2009
DOCKET NUMBER: AR20090003542
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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the narrative reason for separation as medically retired. He also requests his separation date be changed to reflect 16 April 2008, address correction, medical evaluation records mailed to him, DOD Identification (ID) Card, increase in disability rating, and TRICARE insurance.
2. The applicant states that due to rushing, oversight, and typographical error his medical review board evaluation report was not provided to him and it is required by the Department of Veterans Affairs (VA). He further states that the Physical Evaluation Board (PEB) medically retired him and it is not reflected on his DD Form 214.
a. He continues by stating he believes his diagnosis of acne was incorrect and his condition is a type of dermatitis, which has worsened; he needs eyeglasses for his myopathy (astigmatism); he needs to have his injuries treated, not masked with drugs; he needs a DOD ID Card, which he did not receive; and he would like a copy of the medical review board evaluation. In summary, he states he needs more in depth medical care for contact dermatitis, sciatica, numbness, sleeplessness, anxiety, back pain, sleep apnea, neck pain, headaches, hip pain, foot pain, dental problems, back pain during sex, and Post-Traumatic Stress Disorder.
b. He asserts that based on his current rating, he has not received appropriate benefits and his medical rating should be higher because his disabilities and pain levels are worse.
3. The applicant provides his DD Form 214, a DA Form 3947 (Medical Evaluation Board (MEBD) Proceedings), a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), two photocopied pages of magnetic resonance imaging (MRI) findings, and a self-help guide to discharge upgrading in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant's military records show he enlisted in the Regular Army on 12 June 2006. He was awarded the military occupational specialty of petroleum supply specialist, and was promoted to pay grade E-3.
2. The applicant's DA Form 3947, dated 7 September 2007, shows the MEBD found him to have the following medically unacceptable conditions/defects: herniated disc (L4-L5), lumbar spondylosis (L4-L5), and lumbar neuritis.
3. The MEBD found the following conditions medically acceptable: myopia, astigmatism, and acne. Since the second page of the MEBD was not provided by the applicant and was not contained in his military records, it cannot be determined if the applicant concurred with the MEBD's findings or unsuccessfully appealed those findings.
4. On 24 September 2007, a PEB convened. The PEB found that the applicant had a herniated disc, L4-L5 with bilateral neural canal narrowing and sacralization of L5. It indicated this interfered with his ability to lift hoses and fuel vehicles. An exam showed tenderness of paraspinal muscles, some guarding, no motor deficits, and range of motion limited by pain. The PEB found this condition to be unfitting and rated the applicant 10 percent disabled for this condition. The PEB also found the applicant's left L5-S1 radiculopathy with numbness, pain, and sensory deficit to be unfitting. The PEB noted an examination which showed decreased sensation in his left medial calf and foot. The PEB rated this condition as mild incomplete paralysis in accordance with Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) paragraph 4.124a-10 and rated it 10 percent disabling.
5. The PEB found the applicant's other medical conditions referred to it by the MEBD to be medically acceptable without significant physical profile restrictions. As such, the PEB did not rate those conditions.
6. The PEB awarded the applicant a combined physical disability rating of 20 percent and recommended that he be separated with severance pay if otherwise qualified.
7. Accordingly, on 19 October 2007, the applicant was honorably discharged from active duty for reason of disability, severance pay and rated 20 percent disabled after completing 1 year, 4 months, and 8 days of active duty service.
8. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEBD. Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.
9. Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling. Section 1201 provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.
10. Army Regulation 635-40, paragraph 3-5c, states that the fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty.
11. Army Regulation 635-40, paragraph 3-5d, states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Any non-ratable defects or conditions will be listed in item 8 of the PEB Proceedings, but will be annotated as non-ratable.
DISCUSSION AND CONCLUSIONS:
1. While the applicant contends the PEB medically retired him and that it is not reflected on his DD Form 214, his DA Form 199, dated 24 September 2007, shows the PEB found him physically unfit and recommended a combined disability rating of 20 percent and separation with severance pay if otherwise qualified. As such, the narrative reason for separation, "disability, severance pay" shown on his DD Form 214 is correct as currently constituted.
2. While the Board does not have the applicant's medical records, the Board starts its consideration with a presumption of regularity, that what the Army did was correct. The burden of proving otherwise is the responsibility of the applicant. Absent evidence to the contrary, it is concluded the Army completed processing of the applicant's MEBD and PEB correctly. As such, the applicant has not provided sufficiently convincing evidence or argument showing the PEB failed to properly rate his physical disabilities or, therefore, to form a basis to change his discharge to a medical retirement.
3. Available evidence does not indicate the applicant had any type of dermatitis; sciatica; numbness; sleeplessness; anxiety; back pain; sleep apnea; neck pain; headaches; hip pain; foot pain; back pain during sex; or Post-Traumatic Stress Disorder while serving on active duty. Therefore, any new medical complaints or increase in severity or level of pain experienced by the applicant since his separation from the military should be addressed with the VA.
4. Regarding the applicant's request for an address correction; it is unclear what record he wants corrected. Therefore, the Board is unable to address this request.
5. There is no available evidence nor has the applicant provided evidence of an error in regards to his request for his separation date to be changed to reflect 16 April 2008. Therefore, there is no basis for changing his separation date.
6. Regarding the applicant's request for his medical evaluation board results to be mailed to him; those available results will be attached to these case proceedings.
7. Regarding the applicant's request for a DOD ID Card and TRICARE insurance, it is recommended that he contact a Retirement Services counselor near him with any questions he may have in this regard.
8. A disability rating is not based solely upon the existence of a physical defect, but rather upon the extent to which the defect hampers the individual performance of duty. The applicant did not provide any new evidence that was not previously considered by the PEB and his argument was not sufficient to overcome the evaluation of the PEB.
9. 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 the aforementioned requirement.
10. While the applicant's need for medical attention is understandable, the ABCMR does not correct properly constituted military records to establish entitlement to benefits.
11. 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.
_______ _ __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.
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