IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090011591 


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 military records to show that he was retired due to a physical disability.  

2.  The applicant states that after being discharged, the Department of Veterans Affairs (VA) awarded him service connected disability for obstructive sleep apnea, cardiomyopathy and multilevel degenerative disc disease.  He feels that he should have received a medical retirement.  

3.  The applicant provides, in support of his application, a copy of his DA Form 199 (Physical Evaluation Board (PEB) with associated email communications and a memorandum from the State of Ohio Adjutant General’s office informing him of his separation. 

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.  At the time of his application, the applicant was receiving retired pay from the Defense Finance and Accounting Service (DFAS) as a sergeant first class, pay grade E-7, based on his completion of 20 or more years of qualifying service.

3.  On 17 April 2000, the applicant was sent a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  The applicant attained 60 years of age on 
28 February 2009.

4.  On 10 February 2003, the applicant, as a member of the Army National Guard, was ordered to active duty.  He was deployed to Iraq/Kuwait in 2003.  

5.  On 18 May 2004, a PEB convened to consider the applicant’s medical condition.  It found that he suffered from chronic low back pain following back strain with demonstrated multilevel degenerative disc disease without herniation and degenerative arthritis manifested as facet hypertrophy.  Spinal range of motion was limited by pain alone, no radiculopathy, mild spasm noted in addition to tenderness on exam.  Condition prevented full Soldier function.  The underlying degenerative conditions were non-duty related with permanent service aggravation.  His medical condition was rated at 20 percent disabling.  The PEB noted that additional medical conditions listed on the applicant’s Medical Evaluation Board (MEB) were also considered but were not found to be unfitting and therefore, not ratable.  The PEB found the applicant to be physically unfit and recommended that he be separated with severance pay if otherwise qualified.  The available copy of the PEB does not indicate that applicant’s response to the PEB’s decision.  

6.  On 30 September 2004, the applicant was released from active duty and transferred to the U. S. Army Reserve Control Group (Retired Reserve).  The applicant was separated due to physical disability and elected not to receive severance pay in lieu of a Reserve retirement.

7.  A VA rating decision, dated 22 November 2006, indicates that the applicant was rated as follows:

	a.  obstructive sleep apnea syndrome:  50 percent;

	b.  multilevel degenerative disc disease without herniated and degenerative arthritis of lumbar spine:  40 percent (no change from earlier decision); 

	c.  residuals, status post left inguinal hernia repair:  zero percent; and
	d.  cardiomyopathy with left ventricular dysfunction:  10 percent.

8.  The VA Rating decision also confirms a previous decision to deny the applicant’s claim for a disability of his right knee.  His overall VA rating
was 70 percent.

9.  The VA rating decision discussed above, lists as evidence a Rating Decision dated 23 June 2005.  There is no indication of an earlier VA dating decision.

10.   Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 8, paragraph 8-9, provides that members of the Reserve Components may forfeit disability severance pay and be transferred to the Retired Reserve and receive nondisability retired pay at age 60.  All rights to receive retired pay at age 60 are forfeited if disability severance pay is accepted instead of transfer to the Retired Reserve.  The regulation further provides that the Total Army Personnel Command will notify by letter individuals of the foregoing; that the letter will provide sufficient detail to assist the Soldier to reach an informed decision; and that an election once made is final and conclusive and may not be changed.  If the Soldier does not respond, PERSCOM will separate the Soldier with severance pay and a statement will be placed in the Soldier's file recording that the soldier was notified and failed to respond.

11.  Title 10, U. S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.

12.  Army Regulation 635-40, appendix B, Army Application of the VA Schedule for Rating Disabilities, paragraph B-3f, provides that conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless the conditions contribute to the finding of unfitness. 

13.  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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been retired due to a physical disability.  

2.  The evidence shows that the PEB in May 2004 found the applicant to be medically unfit for retention in the military service.  His physical disability was rated at 20 percent disabling for chronic low back pain following back strain with demonstrated multilevel degenerative disc disease without herniation and degenerative arthritis manifested as facet hypertrophy.  Therefore, he was authorized severance pay, which he declined in favor of a Reserve retirement.

3.  The VA rating decision granted the applicant a 40 percent disability rating for multilevel degenerative disc disease without herniated and degenerative arthritis of lumbar spine. It appears that this evaluation was performed in June 2005, a year after he separated.  The applicant's condition may have deteriorated.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability.  Furthermore, 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 must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

4.  In view of the above, the applicant’s request for retirement based on physical disability should be denied.

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)                                         AR20090011591





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ABCMR Record of Proceedings (cont)                                         AR20090011591



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