IN THE CASE OF:	 

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090017724


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 item 23 (Type of Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from "discharge" to "medical."  In effect, he is requesting medical retirement.

2.  The applicant states he was rated as 20-percent disabled at discharge.  Since his discharge, he has had reconstructive surgery on his elbow.  He lost his job with the U.S. Postal Service and is now 70-percent disabled according to the Department of Veterans Affairs (VA).  He adds when he was discharged he did not know his family would not be eligible for TRICARE health insurance.

3.  The applicant provides a letter from the VA, dated 8 July 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 served in the Regular Army from 25 October 1984 to 24 July 1986.  Prior to enlisting, he had surgery on his left arm.  While in Air Assault School, he reinjured his left elbow.  He was referred to the Physical Disability Evaluation System (PDES) for recurrent elbow dislocation.  A medical evaluation board (MEBD) on 19 March 1986 referred him for a physical evaluation board (PEB).  On 5 June 1986, the PEB convened and diagnosed his condition as "elbow, left, non-dominant recurrent dislocation with secondary degenerative joint disease, existed prior to service (EPTS), aggravated by service" with a 20-percent disability rating.  The PEB recommended separation with severance pay.

3.  The applicant concurred with the finding of the PEB, waived a formal hearing, and was discharged.  His DD Form 214 shows:

* item 23 - "discharge"
* item 25 (Separation Authority) - "Army Regulation 635-40, chapter 5"
* item 28 (Narrative Reason for Separation) - "physical disability with severance pay"

4.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system 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 provides for MEBDs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

5.  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 disabilities using the VASRD.  Department of Defense Instruction 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.

6.  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.

7.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA 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 DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA 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 DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

8.  TRICARE is the health care program serving active duty service members, National Guard and Reserve members, retirees, their families, survivors and certain former spouses worldwide.  TRICARE beneficiaries can be divided into two main categories: sponsors and family members.  Sponsors include active duty service members, retired service members and National Guard/Reserve members.  Family members are spouses and children who are registered in DEERS (Defense Enrollment Eligibility Reporting System).

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants item 23 of his DD Form 214 to read "medical" and, in effect, a medical retirement.

2.  The applicant was discharged because of an EPTS-condition aggravated by his service.  After evaluation in the PDES, it was determined that he was unfit for continued service with a 20 percent disability rating and he was discharged by reason of physical disability with severance pay.

3.  The applicant did not have 20 years or more of active service; therefore in order to have been medically retired, his elbow dislocation disability would have required a disability rating of 30 percent or more.

4.  The fact that the VA has, in 2009, rated the applicant as 70 percent disabled has no bearing on his rating at discharge, more than 20 years earlier.  The VA awards disability ratings to veterans for service-connected conditions in order to compensate the veteran for loss of civilian employability [emphasis added].

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)                                         AR20090017724



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ABCMR Record of Proceedings (cont)                                         AR20090017724



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