IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090010818 


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 Physical Evaluation Board (PEB) proceedings to show he was medically retired with a combined disability rating of 30 percent (%).

2.  The applicant states the PEB did not rate his sleep apnea; however, the Department of Veterans Affairs (VA) evaluated it as 30% disabling.

3.  The applicant provides, in support of his application, his PEB Proceedings, separation orders, discharge document, and VA Rating Decision, dated
28 October 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 22 January 1998 and enlisted in the Regular Army on 10 February 1998.  Upon completion of training, he was awarded military occupational specialty 19K (M1 Armor Crewman).  He served in Iraq in support of Operation Iraqi Freedom from 10 April 2003 to         10 March 2004 and from 14 February to 29 November 2006.

2.  The applicant's records do not contain a copy of his Medical Evaluation Board (MEB) proceedings.

3.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows a PEB convened on 26 September 2007.  The PEB Proceedings, Disability Description section, describes the applicant's MEB diagnoses as:
   a.  "chronic right foot pain secondarily caused by a plantar flexed third metatarsal head, insidious onset 4 to 5 years ago.  This condition has not responded to conservative therapy and the Soldier has declined surgery which is an appropriate decision.  Chronic pain and profile restrictions preclude continued duty as a Tanker and command does not recommend retention.  Rated as metatarsalgia unilateral with a recommended disability rating of 10%."

   b.  "[c]ondition listed as medical board diagnosis #2 was determined to meet retention standards by the Medical Treatment Facility (MTF).  Further, consideration by the PEB found the condition to be not unfitting and therefore not ratable.  The Department of Defense (DoD) Physical Disability Evaluation System (PDES) may only rate an illness or injury that is service-incurred or permanently aggravated by military service and, by itself, would cause the Soldier to be separated or retired.  Although the PDES cannot compensate you for this condition, you may still apply for a disability rating for it through the Department of Veterans Affairs (DVA), since they operate under different regulations and guidelines and may compensate any service-connected condition even if not unfitting at the time of separation."
   
   c.  Based on a review of the medical evidence of record the PEB found the applicant physically unfit, recommended a combined rating of 10%, and separation with severance pay, if otherwise qualified.

4.  Headquarters, Installation Management Command, Headquarters, United States Army Garrison, Fort Carson, Fort Carson, Colorado, Orders 318-0014, dated 14 November 2007, show the applicant was reassigned to the U.S. Army Transition Point on 15 November 2007 to be discharged with a disability rating of 10%.

5.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 15 November 2007, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability with severance pay.  At the time he had completed 9 years, 9 months, and 6 days of net active service.  Item 18 (Remarks), in pertinent part, shows the applicant was authorized disability severance pay in the amount of $49,674.00.

6.  In support of his application, the applicant provides a copy of his VA Rating Decision, dated 28 October 2008, that shows the evaluation of obstructive sleep apnea (then) evaluated as 30% disabling was increased to 50% disabling, effective 15 February 2008, the date he was prescribed a continuous airway pressure machine.
7.  Army Regulation 635-40, in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier 
was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 3 (Policies), paragraph 3-1 (Standards of unfitness because of physical disability), in pertinent part, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

8.  Paragraph 4-12 (Informal board) of Army Regulation 635-40 provides, in pertinent part, that each case is first considered by an informal PEB.  Informal procedures reduce the overall time required to process a case through the disability evaluation system.  An informal board must ensure that each case considered is complete and correct.  All evidence in the case file must be closely examined and additional evidence obtained, if required.  In addition, in all informal cases, the PEB Liaison Officer (PEBLO) of the MTF having control of the Soldier will be the counselor for the Soldier.  As such, the PEBLO is primarily concerned with the Soldier's interests.  The Soldier will be made fully aware of the election options available to him, the processing procedures, and benefits to which he will be entitled if separated or retired for physical disability.

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 rated at least 30%.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30%.

10.  Title 38, U.S. Code, sections 1110 and 1131, permits 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.  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 or her 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 based on the same impairment.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his PEB proceedings should be corrected to show he was medically retired based on chronic right foot pain (10%) and sleep apnea with a combined rating of not less than 30%.

2.  Records show that the PEB recommended a combined rating of 10% and that the applicant be separated with severance pay.  Accordingly, the applicant was honorably discharged on 15 November 2007 by reason of disability with severance pay.

3.  There is no evidence to show that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  As a result, the applicant is not entitled to correction of his PEB proceedings to show he was found unfit for a condition of sleep apnea or an increased permanent disability rating.  Thus, the applicant's PEB proceedings are presumed proper and equitable.  Therefore, the applicant is not entitled to correction of his records to show an adjustment to his disability rating.

4.  The statutory and regulatory guidance provides that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The VA (and some other government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other government agency), in its discretion, awarded the applicant a disability rating for a condition that was determined to meet Army retention standards, is a prerogative exercised within the policies of that agency.

5.  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.


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)                                         AR20090010818



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ABCMR Record of Proceedings (cont)                                         AR20090010818



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