IN THE CASE OF:	  

		BOARD DATE: 	        4 June 2009

		DOCKET NUMBER:  AR20090004461 


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 her records to show she was medically retired instead of honorably discharged for disability with entitlement to severance pay.

2.  The applicant states that while serving on active duty as an Active Guard Reserve (AGR) Soldier, she suffered an injury that dramatically limited her ability to perform her duties as a Soldier.  She was ultimately rated at 10-percent disabled by the Army medical evaluation team and was processed for a regular medical discharge.  She adds that she is currently rated at 70-percent disabled by the Department of Veterans Affairs (DVA) and that she is in constant pain.  She served her country and wishes to be granted a full medical retirement based on her current medical rating.

3.  The applicant provides a copy of the DVA rating decisions, dated 11 March 2005 and 10 September 2008; a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 16 October 2004; a copy of Orders D-08-490199 issued by the U.S. Army Human Resources Command (HRC), St. Louis, MO, on 13 August 2004; and a copy of her DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 20 July 2004, in support of her 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.  The applicant’s records show she initially enlisted in the Regular Army on 28 December 1990 and was trained in military occupational specialty (MOS) 88M (Motor Transport Operator).  She was honorably released from active duty on 9 November 1994 and transferred to the U.S. Army Reserve (USAR).  She entered the USAR AGR program on 20 July 1997.  She held MOS 92Y (Supply Specialist) and was promoted through the ranks to sergeant first class.

3.  On 3 June 2004, a medical evaluation board (MEBD) convened at Evans Army Community Hospital, Fort Carson, CO, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD found that the applicant was diagnosed as having the medical conditions of chronic discogenic low back pain secondary to degenerative disc disease, chronic right shoulder pain, gastroesophageal reflux disease, episodic left lower abdominal and flank pain, and a history of depression.  The MEBD recommended that she be referred to a physical evaluation board (PEB).  The applicant agreed with the MEBD’s findings and recommendation and indicated that she desired not to continue on active duty.

4.  On 20 July 2004, an informal PEB convened at Fort Lewis, WA, and found the applicant's condition prevented her from performing the duties required of her grade and specialty and determined that she was physically unfit due to chronic low back pain with degenerative disc disease and bulging disc at L5/S1 and L4/L5.  The applicant was rated under the DVA Schedule for Rating Disabilities (VASRD) and was granted a 10-percent disability rating for code 5241 (chronic low back pain) and a 10-percent disability rating for codes 5299 and 5237.  The PEB also considered her other medical conditions (chronic right shoulder pain, gastroesophageal reflux disease, episodic left lower abdominal and flank pain, and depression) and found them not to be unfitting and therefore not ratable.  The PEB recommended 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 her right to a formal hearing on 22 July 2004.

5.  On 13 August 2004, HRC-St. Louis published Orders D-08-490199 directing the applicant’s discharge by reason of physical disability.  Accordingly, she was discharged on 16 October 2004.  The DD Form 214 she was issued shows she completed 11 years and 1 month of total creditable active service.

6.  On 11 March 2005, the DVA awarded the applicant a combined evaluation of 60 percent for her individual disabilities and on 10 September 2008 the DVA increased it to 70 percent, 50 percent of which was for a hysterectomy.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 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 or her 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 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

8.  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.  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.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

9.  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 of 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.

10.  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 contends that her records should be corrected to show she was medically retired instead of honorably discharged for disability with entitlement to severance pay.

2.  PEBs 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 injury and subsequently underwent an MEBD which recommended she be given a PEB.  She agreed with this recommendation.  The PEB found her chronic low back pain prevented her from performing her duties and determined that she was physically unfit for further military service.  The PEB recommended her separation with entitlement to severance pay.  The applicant concurred.

4.  The applicant now believes she should have received full retirement for her low back pain because the DVA granted her a higher percentage.  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 their own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  For example, it is noted that the DVA awarded the applicant a 50 percent disability rating merely for having had a hysterectomy.  However, there is no evidence to show that the sequelae of this procedure rendered the applicant unable to perform her duties.

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 was properly rated at 10 percent for her chronic back pain. 
There is no evidence to support a higher rating or medical retirement.

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.  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)                                         AR20090004461



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ABCMR Record of Proceedings (cont)                                         AR20090004461



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