IN THE CASE OF:	

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090016459 


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 her records to show she was medically retired instead of honorably discharged for disability with entitlement to severance pay.

2.  The applicant states that she was discharged for disability with entitlement to severance pay.  She believes an error was made because the diagnosis of fibromyalgia and anemia was not considered by her medical evaluation board (MEB).  The doctors did not submit all her medical issues and her records were not adequately reviewed by the MEB or the physical evaluation board (PEB).  She believes this issue would have deemed at least over 40 percent for which the Department of Veterans Affairs (VA) has awarded her.  An award of this percentage by the Army would have deemed her medically retired in 1995.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 5 September 1995; copies of her VA rating decisions, dated 2007, 2008, and 2009; a copy of her DA Form 3947 (MEB Proceedings), dated 30 May 1995; a copy of her DA Form 199 (PEB Proceedings), dated 21 June 1995; a copy of her Standard Form (SF) 93 (Report of Medical History), dated 9 May 1995; a copy of her DA Form 3349 (Physical Profile), dated 14 October 1995; a copy of her SF 513 (Consultation Sheet), dated 4 February 1994; and a copy of her VA Electronic Health Summaries, dated 28 December 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’s records show she initially enlisted in the Regular Army (RA) on 7 October 1983 and held military occupational specialty (MOS) 64C (Motor Transport Operator).  She served through multiple reenlistments, held MOS 71M (Chaplain Assistant), and attained the rank/grade of sergeant (SGT)/E-5.

3.  On 14 October 1994, she was issued a physical profile for fibromyalgia and right rotator cuff tendinitis.

4.  On 19 May 1995, she underwent a thorough medical examination subsequent to complaining of chronic back and right shoulder pain.  Her narrative summary shows she was diagnosed with chronic right rotator cuff tendinitis and an unidentified connective tissue disease similar to lupus erythematosus.  She was recommended for entry into the Physical Disability Evaluation System (PDES).

5.  On 30 May 1995, an MEB convened at the Army Community Hospital, Fort Stewart, GA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found that the applicant was diagnosed as having the medical conditions of chronic right rotator cuff tendinitis and an unidentified connective tissue disease similar to lupus erythematosus.  The MEB recommended referral to a PEB.  She agreed with the MEB’s findings and recommendation and indicated that she desired not to continue on active duty.

6.  On 21 June 1995, an informal PEB convened at Fort Sam Houston, TX, and found her condition prevented her from performing the duties required of her grade and specialty and determined that she was physically unfit due to chronic right shoulder pain due to rotator cuff tendinitis.  She was rated under the VA Schedule for Rating Disabilities (VASRD) and was granted a 10-percent disability rating for codes 5202 and 5003.  The PEB also considered her other medical 

condition (unidentified connective tissue disease similar to lupus erythematosus) and found it not to be unfitting and therefore was not ratable.  The PEB recommended that she be separated with entitlement to severance pay, if otherwise qualified.

7.  Page 2 of the DA Form 199 is not available for review with this case.  However, it appears that she concurred with the PEB’s finding and recommendation and waived her right to a formal hearing.

8.  She was honorably discharged on 5 September 1995.  The DD Form 214 she was issued shows she was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of separation for physical disability with severance pay ($38,692.80).  This form further shows she completed 11 years, 10 months, and 29 days of total creditable active service.

9.  From 2003 through 2009, the VA awarded her service-connected disability compensation for various conditions including 10% for low back pain, 10% for cervical/segmental dysfunction, 10% for thoracic spine strain, 40% for fibromyalgia, 50% for depressive disorder, and 10% for fractured left lateral malleous. 

10.  In the processing of this case, on 12 March 2010 an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The advisory official recommended no change to the applicant's military records.  The official stated:

	a.  The applicant's MEB was completed with only two diagnoses listing her chronic right rotator cuff tendinitis and an unidentified connective tissue disease similar to lupus erythematosus.  She complained of symptoms of joint pain and sleep disturbances which first led to a diagnosis of fibromyalgia by the rheumatology service.  However, after extensive testing and further review by the rheumatology service, the MEB changed the diagnosis to a connective tissue disease.  Although the name of the diagnosed condition changed, its symptoms remained the same.

   b.  The PEB found her unfit for tendinitis and rated this condition at 10% with a recommendation to separate her with severance pay.  The PEB found her other symptoms, which could be caused by fibromyalgia, anemia, or connective tissue disease, were not unfitting regarding her assigned duties as a chaplain assistant.  After being properly advised of her rights, she concurred with the findings and waived her right to a formal hearing.

	c.  The PEB's findings appear to be reasonable based on the preponderance of evidence and was accomplished in accordance with all applicable administrative due process.  Conditions found fit for duty cannot be compensated in the military system.  She was only found unfit for her tendinitis and that was the only condition compensable by the military.  A subsequent VA compensation for other conditions is not evidence of a PEB error.

11.  On 15 March 2010, she was provided with a copy of the advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal.  She did not respond.

12.  Army Regulation 635-40 establishes the Army 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.  It states 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 his or her office, grade, rank, or rating.

13.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all unfitting disabilities using the VASRD.  Department of Defense Instruction (DODI) 1332.39 and Army Regulation 635-40, appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

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

15.  Title 38, U.S. Code, sections 1110 and 1131, permit 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from 

further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be corrected to show she was medically retired instead of honorably discharged for disability with entitlement to severance pay.

2.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

3.  The applicant sustained a medical condition and subsequently underwent an MEB which recommended referral to a PEB.  She agreed with this recommendation.  The PEB found her chronic right shoulder pain due to rotator cuff tendinitis prevented her from performing her duties and determined that she was physically unfit for further military service.  The PEB recommended her separation with entitlement to severance pay.  The applicant concurred.

4.  She now believes she should have received full retirement for her fibromyalgia because the DVA granted her a service-connected disability compensation for this condition.  However, an award of a rating by another agency does not establish error in the rating assigned by the Army's PDES.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.

5.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  She was properly rated at 10% for her chronic right shoulder pain due to rotator cuff tendinitis.  There is no evidence to show that any other condition rendered her unfit to perform her duties and therefore there is insufficient evidence that would support a higher rating or medical retirement.

6.  Her physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.  In order to justify correction of a military record she must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  She did not submit sufficient evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant her the 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)                                         AR20090016459



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ABCMR Record of Proceedings (cont)                                         AR20090016459



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