BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090010033 


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 change of his honorable discharge for disability, with severance pay, to disability retirement.  [His original request was for retention on active duty to complete 20 years of service for retirement.  This was modified by his response to an advisory opinion from the U.S. Army Physical Disability Agency (USAPDA)].

2.  The applicant states that he was severely disabled and he should have been rated higher so that he could have been medically retired.  He also contends that he was never counseled about the regulatory provision that would have let him complete 20 years of active duty or the possibility of requesting continuation on active duty.  He argues he should have been retained on active duty.  He also believes that he should have been retired in the rank/grade of sergeant first class (SFC)/E-7.  That was the highest grade he had held, but upon separation, he did not have any available documentation.

3.  The applicant provides copies of his Department of Veterans Affairs (VA) appeals and ratings and service/medical documents related to his disability discharge in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's disability at the time of separation be changed to 60 percent and that he be retired due to disability and that his pay grade at separation should be changed to E-7.

2.  Counsel states that the Physical Evaluation Board (PEB) erred when it rated the applicant for only back pain and not for a herniated disc.

3.  Counsel provides no additional documentation to substantiate the 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, a Reserve noncommissioned officer with prior active and inactive duty service, entered active duty in the Active Guard Reserve (AGR) program as a sergeant (SGT)/E-5 on 26 December 1990.  He was apparently promoted to staff sergeant (SSG)/E-6 on 13 September 1992.

3.  On 18 July 1994, the Company Commander, Headquarters and Headquarters Company, 260th Military Intelligence Battalion, Florida Army National Guard requested promotion orders for the applicant's promotion to pay grade E-7.  He had been selected for a unit vacancy position.  There are no available promotion orders and no evidence that the applicant ever served on active duty in pay grade E-7.

4.  On 15 December 1997, the applicant was released from active duty, in        the rank and grade of SSG, E-6.  His DD Form 214 for the period ending           15 December 1997 indicates his military occupational specialties (MOSs) were 79T and 74C.

5.  On 27 January 1998, the applicant enlisted in the Regular Army in pay grade E-5.  His enlistment contract indicates MOSs 12C and 74C were not available at grades E-6 or E-5 and MOS 97E was not available at grade E-6.  He was permitted to enlist in pay grade E-5 with enlistment in a priority MOS (13F).

6.  He received significant medical attention in the summer of 1998.  His company commander wrote a 25 June 1998 memorandum describing him as "physically incapable of performing his duties…due to his chronic low back pain."  He recommended the applicant be considered unfit for continued military service.

7.  Extensive medical evaluation ensued.  Microscopic hematuria [blood cells in the urine] was discovered but a 10 September 1998 cystoscopic examination determined that the condition was benign.

8.  On 25 November 1998, a medical evaluation board (MEB) found he had chronic low back pain and microscopic hematuria.  Both were considered to have been incurred while entitled to active duty pay.  The DA Form 3947 (Medical Evaluation Board Proceedings) show the applicant initialed the block checked, “does not desire to continue on active duty under AR 635-40.”  The case was referred to a PEB.

9.  The 15 December 1998 informal PEB found the applicant unfit due to chronic low back pain rated at 10 percent and recommended separation with severance pay.  The applicant concurred and waived a formal hearing of his case.  The USAPDA approved the recommendation and, on 24 March 1998, the applicant was discharged due to physical disability with $51,364.80 in severance pay.  He had a total of 18 years, 11 months, and 7 days of total active service.

10.  The 4 June 2007 VA rating decision that the applicant provided with his application shows that he was rated at 60 percent disabled due to degenerative disc disease of the lumbar spine.  He was also rated at zero percent disabled for a fractured sternum.  His claims for arthritis of the feet and ankles, clavicle for a fractured right shoulder, and individual employability were denied.

11.  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 rated at least 30 percent.

12.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

13.  Records provided by the VA indicate that the applicant has been awarded compensation for medical conditions which that agency has determined to be related to military service.

14.  Title 38, U.S. Code, sections 310 and 331, 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.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

15.  Title 10, U.S. Code, section 1176 states in paragraph a, "A regular enlisted members who is selected to be involuntarily separated or whose term of enlistment expires and who is denied reenlistment, and who on the date on which the member is to be discharged is within two years of qualifying for retirement, may not be discharged or denied reenlistment without the member’s consent."

16.  An advisory opinion from the USAPDA pointed out that the applicant was rated for lumbosacral strain not disc disease.  The 1998 physical examination and associated myelogram had not reflected disc or nerve abnormalities.  It pointed out that the VA had obtained different medical findings and had therefore rated the applicant differently, but that it did not demonstrate an error in the PEB's findings and recommendation.  The USAPDA also noted that, although the provisions of Title 10, U.S. Code, section 1176 did not apply, the PEB Liaison Officer (PEBLO) had advised the applicant that he could apply for continuation on active duty.

17.  In response to the advisory opinion the applicant maintained that the PEBLO had not told him anything about requesting an extension on active duty.  He asserts that disability severance pay was the only option that was made available or discussed with him.  He insisted that, had he known he could have requested retention on active duty, he would have done so in order to qualify for retirement.  He concludes by arguing that he was and is severely disabled and should have been retired.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he was severely disabled and he should have been rated higher so that he could retire.  He also contends that he was never counseled about the regulatory provision that would have allowed him to complete 20 years of active duty service or the possibility of requesting continuation on active duty.  He argues he should have been retained on active duty.  He also believes that he should have been retired in pay grade E-7.

2.  The applicant was being separated due to physical disability.  Therefore, the provisions of Title 10, U.S. Code, section 1176 simply did not apply to him.
3.  In addition, the DA Form 3947 shows he did not desire to continue on active duty, indicating that he was counseled concerning this option.  In any case, the 25 June 1998 memorandum from the company commander clearly says the applicant was physically unable to perform his duty.  Furthermore, the applicant, himself, continues to insist that he was so disabled that he should have been retired.  Given these circumstances, it is almost certain that the applicant would not have been authorized to continue on active duty.

4.  The fact that the VA, in its discretion, has awarded the applicant a disability rating in excess of 30 percent is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

5.  There is no evidence to show that the applicant's disability was not properly rated in accordance with the VA Schedule for Rating Disabilities (VASRD) at the time of his separation in 1998.  As such, his separation with severance pay was in compliance with law and regulation.

6.  There is no available evidence to show that the applicant served on active duty in pay grade E-7.

7.  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 this requirement.

8.  Based on the foregoing, there is no basis for granting the applicant's 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)                                         AR20090010033



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ABCMR Record of Proceedings (cont)                                         AR20090010033



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