BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090014280 


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 that her 4 June 1998 discharge, by reason of physical disability with severance pay, be voided and that her record be corrected to show that she was either medically retired with full benefits or placed on the Temporary Disability Retired List (TDRL) until a determination of her status is made.

2.  The applicant states that the line of duty officer did not inform her that the decision of the medical board to medically separate her could be appealed or challenged based on her health at the time of her discharge.  She further states that although the medical board evaluated her Lupus condition, medical conditions she suffered from at the time, which included Post Traumatic Stress Disorder (PTSD), Depression, Bipolar Disorder, and Diabetes, were not evaluated by the medical board.

3.  The applicant provides no documentation in support of her application.

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 record shows she enlisted in the Regular Army (RA) and she entered active duty on 16 September 1987.  Her record shows she was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 August 1995 and that this is the highest grade she attained and served in while on active duty.

3.  On 23 February 1998, a Medical Evaluation Board (MEB) convened at Moncrief Army Community Hospital, Fort Jackson, SC, to consider the applicant's case.  The MEB found the applicant unfit for continued duty due to her discoid lupus erythematosus with arthralgias and symptoms of arthritis, major depression, migraine headaches, history of hammertoes, and history of acne vulgaris.

4.  On 27 February 1998, the applicant concurred with the MEB's findings and recommendation.

5.  On 6 March 1998, the applicant's case was initially evaluated by a Physical Evaluation Board (PEB) which convened at Fort Jackson.  The PEB found that the applicant was physically unfit and recommended a disability rating of
10 percent (%) under Veteran's Administration Schedule for Rating Disabilities (VASRD) codes 7809, 6399, and 6350 based on her discoid lupus erythematosus with arthralgias and symptoms of arthritis.  The PEB found that MEB's diagnoses 2-5 (major depression, migraine headaches, history of hammertoes, and history of acne vulgaris) were not unfitting; therefore, they were not ratable.  The PEB recommended the applicant be separated with severance pay with a combined disability percentage rating of 10%.

6.  On 18 March 1998, the applicant non-concurred with the PEB's findings and recommendations.  She waived a formal hearing and submitted her written appeal.  However, the applicant's record did not contain a copy of her appeal.

7.  On 20 March 1998, the PEB informed the applicant that her rebuttal did not provide information as to any new diagnosis or changes in her currently rated disability, and the Board affirmed the unfitting decision of the informal PEB's disability rating of 10%.  Accordingly, her entire file was forwarded to the U.S. Army Physical Disability Agency (USAPDA) for final review.


8.  On 26 March 1998, the PDA, after review of the PEB's findings and recommendations and the applicant's rebuttal, determined there was an error to the VASRD code used by the 6 March 1998 PEB and administratively corrected it to VASRD "7809" instead of "7809, 6399, and 6350."  The PDA further determined that the PEB's findings and recommendations were supported by substantial evidence and were therefore affirmed.

9.  On 4 June 1998, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b (3), by reason of physical disability with severance pay.  The DD Form 214 she was issued confirms she completed a total of
10 years, 8 month, and 19 days of active military service.

10.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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.  Paragraph 3-1 of the PDES regulation contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of 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.

11.  Paragraph 3-5 of the PDES regulation contains guidance on rating disabilities.  It states, in pertinent part, 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.  Any non-ratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable. 

12.  Title 38, U.S. Code, sections 1110 and 1131, permits the Department of Veterans Affairs (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. 
The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she was not properly evaluated and rated for all of her disabilities, which would have entitled her to be permanently retired or placement on the TDRL, was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, the mere presence of 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.  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.  Any non-ratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable.

3.  The evidence of record confirms that the PEB determined that only the applicant's discoid lupus erythematosus was unfitting and her disability rating was based on this condition alone.  Although the MEB and PEB recognized the applicant suffered from other medical conditions, the PEB determined these conditions were not unfitting and therefore were not ratable.

4.  The evidence of record shows the applicant's PDES processing was accomplished in accordance with the applicable law and regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout her disability processing.  It further shows the applicant waived her right to a formal PEB, but was afforded appropriate appellate review by the USAPDA.  As a result, absent any compelling new medical evidence to the contrary, there is an insufficient evidentiary basis to support a change to the findings and recommendations of the PEB and/or to grant the requested relief.   

5.  The applicant is advised that the VA is the appropriate agency to seek care and compensation for service-connected conditions that were not unfitting for further military service at the time of processing through the Army's PDES, and she should seek relief in these areas from that agency.

6.  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 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)                                         AR20090014280



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ABCMR Record of Proceedings (cont)                                         AR20090014280



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