DOCKET NUMBER:  AR20090003896 


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), dated 11 March 1993, as follows:

	a.  item 23 (Type of Separation) to show "retired" instead of "discharged";

	b.  item 26 (Separation Code) to show "SFJ" instead of "JFL";

	c.  item 27 (Reentry Code) to show "RE-4R" instead of "RE-3"; and

	d.  item 28 (Narrative Reason for Separation) to show "physical disability retirement" instead of "physical disability with severance pay."

2.  The applicant states that during the rating process the physical disabilities were incorrectly calculated to reflect the true nature of the rating.  He adds that this information was made available upon a reevaluation by the Department of Veterans Affairs (VA) which should have been done by the Army at the time of the original rating.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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.  With prior service in the U.S. Marine Corps, the applicant's records show he enlisted in the Regular Army (RA) on 2 December 1986.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He also executed a 6-year reenlistment on 17 November 1989 and was promoted through the ranks to staff sergeant/E-6 on 1 May 1992.

3.  In October 1992, the applicant underwent a physical examination that resulted in a diagnosis of right dorsoscapular nerve root impingement syndrome, degenerative disc disease/mechanical low back pain, and right sacroiliac irritation.  The attending physician indicated that the applicant did not meet retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and recommended the applicant's entry into the Physical Disability Evaluation System (PDES).  He was also issued a physical profile for the medical conditions of L1/S1 degenerative disc disease, right shoulder scapular nerve impingement, and left eye retinal detachment/central vision.

4.  On 2 December 1992, a medical evaluation board (MEBD) convened at Fort Drum, NY, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD found the applicant was diagnosed as having the medical conditions of right doroscapular nerve root impingement syndrome, degenerative disc disease/mechanical low back pain, and right sacroiliac irritation.  The MEBD recommended that he be referred to a physical evaluation board (PEB).  The applicant agreed with the MEBD’s findings and recommendation and indicated that he did not desire to continue on active duty.

5.  On 31 December 1992, an informal PEB convened at Walter Reed Army Medical Center, Washington, DC, and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to moderate paralysis of doroscapular nerve and mechanical low back pain.  The applicant was rated under the VA Schedule for Rating Disabilities (VASRD) and was granted a 
10-percent disability rating for code 8299 and 8211 (moderate paralysis of doroscapular nerve) and a 10-percent disability rating for code 5295 (mechanical low back pain).  The PEB also considered the applicant's condition of right sacroiliac irritation but did not find it unfitting and therefore was not ratable.  The PEB recommended a 20 percent combined rating and that the applicant be separated with entitlement to severance pay if otherwise qualified.  The applicant concurred with the PEB’s finding and recommendation and waived his right to a formal hearing on 19 January 1993.

6.  On 5 February 1993, the U.S. Total Army Personnel Command (now known as the U.S. Army Human Resources Command), Alexandria, VA, notified the applicant's chain of command by message that the PEB was approved and that he was authorized discharge for disability at a rating of 20 percent.

7.  On 11 March 1993, the applicant was honorably discharged in accordance with paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability with entitlement to severance pay.  The DD Form 214 he was issued shows he completed 10 years, 3 months, and 10 days of creditable active service.  Item 23 of this form shows "discharge," item 26 shows "JFL," item 27 shows "RE-3," and item 28 shows "physical disability with severance pay."

8.  Army Regulation 635-40 establishes the Army PDES 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 MEBDs 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 MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

9.  Army Regulation 40-501 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 all disabilities using the VASRD.  Army Regulation 635-40, appendix B, modifies those provisions of the rating schedule inapplicable to the military and clarifies rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

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 of service and a disability rating at less than 30 percent.

11.  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.  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 VA does not have authority or responsibility for determining physical fitness for military service.  The VA 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 VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

12.  Army Regulation 635-200 (Personnel Separations) states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned reentry eligibility (RE) codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Table 3-1 included a list of the RA RE codes.  An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.  RE-4R applies particularly to Soldiers separated from last period of service due to retirement.

13.  Army Regulation 635-5-1 (Separation Program Designator Codes(SPD)) states that SPD codes are three-character alphabetic combinations which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The "JFL" SPD code is the correct code for Soldiers separated under paragraph 4-24b(3) of Army Regulation 635-40 by reason of disability with entitlement to severance pay.

14.  The SPD/RE Code Cross Reference Table, dated 1 March 2001, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "JFL" has a corresponding RE code of "3."

15.  The VASRD specifies diagnostic codes for a wide spectrum of diseases and physical impairments covering all major body systems.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.  The diagnostic code numbers appearing opposite the listed ratable disabilities are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis, and extend from 5000 to a possible 9999.  The first two digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last two digits will be "99" for all unlisted conditions.

16.  Code 82 of the VASRD pertains to the paralysis of the nerves.  Code 8211 pertains to the eleventh (spinal accessory, external branch) cranial nerve.  A rating of 30 percent is awarded for complete paralysis; 20 percent for an incomplete, but severe paralysis; and 10 percent for incomplete, but moderate paralysis.

17.  Code 52 of the VASRD pertains to the spine.  Code 5295 (lumbosacral strain) states a 40-percent rating is awarded when it is severe, with listing of the whole spine to the opposite side, positive Goldwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion; a 20-percent rating is awarded with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in a standing position; a 10-percent rating is awarded with characteristic pain on motion; and a zero-percent rating is awarded with slight subjective symptoms only.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was medically retired instead of honorably discharged for disability with entitlement to severance pay and correction of RE and separation codes.
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 was diagnosed as having moderate paralysis of doroscapular nerve and mechanical low back pain.  He subsequently underwent an MEBD which recommended he be referred to a PEB.  He agreed with this recommendation.  The PEB found his moderate paralysis of doroscapular nerve and mechanical low back pain conditions prevented him from performing his duties and determined that he was physically unfit for further military service.  The PEB recommended his separation with entitlement to severance pay.  The applicant concurred.

4.  The applicant now believes he should have received full retirement for his medical condition because of a reevaluation conducted by the VA should have also been done by the Army.  However, an award of a different rating by another agency does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.

5.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  The applicant provided no evidence to show his paralysis of the doroscapular nerve was more than moderate or that his mechanical low back pain included symptoms of more than just characteristic pain on motion.  It appears the applicant was properly rated at 20 percent for his moderate paralysis of doroscapular nerve and mechanical low back pain medical conditions.  There is no evidence to support a higher rating or retirement.

6.  The evidence of record confirms the applicant’s separation and RE codes were assigned based on the fact that he was discharged under the provisions of paragraph 4-24b(3) of Army Regulation 635-40 due to his disabling medical conditions.  Absent the medical conditions, there was no fundamental reason to process the applicant through the PDES for a discharge.  Since the PEB rated him at a combined rating of 20 percent, by law, the applicant did not qualify for retirement.  However, he qualified for severance pay.  Therefore, the only valid narrative reason for separation permitted under this paragraph is "physical disability with severance pay" and the appropriate separation and RE codes associated with this discharge are "JFL" and "RE-3."

7.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.  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.

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)                                         AR20090003896



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ABCMR Record of Proceedings (cont)                                         AR20090003896



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