BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090008610 


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 disability rating be changed to        30 percent and that he be placed on the Retired List.

2.  The applicant states, in effect, that the Department of Veterans Affairs (VA) has currently assigned him a 30 percent disability rating or "(80% disability)" and that he was released from active duty with a 15 percent disability rating.  

3.  The applicant provides:

   a.  A DA Form 199 (Physical Evaluation Board (PEB) Proceeding), dated 
16 October 2000; 
   
   b.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 February 2001;
   
   c.  Standard Forms (SF) 519-B (Radiologic Examination Report) with various dates between 10 November 1998 and 29 July 2006;
   
   d.  Medical Progress Notes from Tripler Army Medical Center (TAMC), Hawaii with various dates between 10 May 1999 and 29 June 2006; 
   
   e.  A thirteen page VA Appeal, dated 15 January 2008; and 
   
   f.  A VA memorandum addressed to the applicant, dated 27 April 2009.

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 on 18 August 1993 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty (MOS) 68J (Aircraft Armament/Missile System Repairman).

3.  A medical evaluation board (MEB) Narrative Summary (NARSUM) indicates the applicant was evaluated on 23 November 1999, at which time he was diagnosed with:
	
	a. Left knee instability, status anterior cruciate ligament reconstruction; 

	b. Scaphoid nonunion on the right; and

   c.  Left pectoralis major tear.

4.  On 15 June 2000, an MEB was diagnosed the applicant with left knee instability, status post anterior cruciate ligament (ACL) reconstruction; scaphoid nonunion with on the right; and left pectoralis major tear.  All three conditions were determined to have been incurred while the applicant was entitled to pay; not existed prior to service; and were permanently aggravated by service.  The recommendation was that the applicant be referred to a PEB.

5.  On 22 August 2000, the approval authority concurred with the findings and recommendation.  

6.  A Commander's Statement, dated 1 September 2000, shows the applicant's commander stated that the applicant was a squad leader in an armament platoon.  Due to the applicant's restrictions, physical profile, and his medical conditions, he was not able to perform the duties of his MOS.
7.  On 15 September 2000, the applicant non-concurred with the MEB's findings and recommendations and appealed.

8.  On 2 October 2000, the approval authority considered the applicant's appeal; however, the original findings and recommendation were confirmed.  The applicant's case was referred to a PEB for evaluation.  

9.  On 16 October 2000, an informal PEB found the applicant unfit based on status post ACL repair and treatment of osteochondritis dissecans lesion of the medial femoral condyle.  Diagnoses 2 and 3 were found to be not unfitting.  It was determined that his physical impairments made him medically unfit to perform his duties required of his rank and grade.  The PEB rated the applicant's condition 20 percent disabling and recommended separation with severance pay.

10.  On 24 October 2000, the applicant concurred with the PEB findings and recommendations.

11.  On 1 February 2001, the applicant was honorably discharged under the provisions of Army Regulation 635-40 due to disability, severance pay, and a 
20 percent disability rating.  He had completed 7 years, 5 months, and 14 days of active military service.

12.  The applicant provided an 11-page VA Appeal, dated 15 January 2008, that shows he appealed an initial VA rating decision that assigned him an additional 
10 percent rating for service-connected right scaphoid nonunion, status post surgical repair.

13.  A VA memorandum, dated 27 April 2009, shows the applicant was entitled to receipt of disability compensation due to a service-connected disability rated at 
30 percent or greater.

14.  Army Regulation 635-40 (Physical Evaluation), chapter 3 provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  To be found unfit by reason of physical disability, individuals must be unable to perform the duties of grade, rank or rating.

15.  Army Regulation 635-40 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.

16.  The Veterans Affairs Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel.  The Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  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.

17.  Department of Defense Instruction (DODI) 1332.39 (Application of the VASRD) notes that the VASRD percentage ratings represent, as far as can practicably be determined, the average impairment in civilian occupational earning capacity resulting from certain diseases and injuries.  However, not all the general policy provisions of the VASRD are applicable to the Military Departments.  Many of the policies were written primarily for VA rating boards and are intended to provide guidance under laws and policies applicable only to the VA.  This Instruction replaces some sections of the VASRD.

18.  Title 38, U. S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends his disability rating should be changed to 
30 percent and he should be placed on the Retired List, the evidence shows the PEB determined that he was unfit for further service and rated him at 20 percent disabled.

2.  Only those conditions or defects that contributed to the applicant's unfitness at the time of separation were considered by the MEB and PEB in arriving at his degree of disability.  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 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.  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.  

3.  There is insufficient evidence to show the applicant’s PEB disability rating is incorrect or that his separation with severance pay was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to change his disability rating. 

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)                                         AR20090008610



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ABCMR Record of Proceedings (cont)                                         AR20090008610



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