IN THE CASE OF:
BOARD DATE: 24 August 2010
DOCKET NUMBER: AR20090018889
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 his discharge due to physical disability with severance pay be changed to physical disability retirement.
2. The applicant states that the Department of Veterans Affairs (VA) has rated his back condition at 30 percent.
3. The applicant, in support of his request, cites a decision letter from the Portland, Oregon VA Regional Office but he did not provide a copy.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 25 September 2008 for 4 years with a guarantee of training in military occupational specialty (MOS) 68W as a health care specialist.
2. On 14 May 2009, a physical evaluation board (PEB) considered the report of a medical evaluation board (MEB). The PEB found that the applicant's low back pain was not the result of intentional misconduct, willful neglect or unauthorized absence. It had been incurred while he was entitled to basic pay during a qualifying period and was the proximate result of performing duty. The condition was considered disabling and rated at 20 percent.
3. The PEB also considered the MEB's other two diagnoses -- right ankle- post reconstruction and tremors. It determined that the applicant met retention standards and was not ratable for those conditions.
4. The applicant concurred with the PEB and waived his right to a formal hearing.
5. On 3 June 2009, the applicant was discharged due to physical disability with severance pay.
6. The applicant failed to respond to a 30 June 2010 letter advising him of his right to withdraw his application and to apply to the Department of Defense Physical Disability Board of Review.
7. Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
8. Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.
9. Title 38, United States 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. 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 individuals 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.
10. Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agencys 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.
11. A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension. By law, a veteran can normally be compensated only once for a disability. If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.
DISCUSSION AND CONCLUSIONS:
1. The applicant states that the VA has rated his back condition at 30 percent.
2. The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating.
3. There is no documentation to support the applicant's contention and no rationale to support the implied conclusion that those alleged circumstances would warrant the requested relief.
4. In view of the foregoing there is no basis for granting the applicant's 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) AR20090018889
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20090018889
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2013 | 20130015364
The applicant requests, in effect, correction of his record to show the Physical Evaluation Board (PEB) awarded him the same disability rating that he was awarded by the Department of Veterans Affairs (VA). The VA proposed a combined service-connected disability rating of 80 percent for his unfitting and claimed disabilities. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for...
ARMY | BCMR | CY2003 | 03094176C070212
The applicant disagreed and requested a formal hearing; however, on 19 January 1999 he reconsidered, waived his scheduled formal hearing, and concurred with the 20 percent disability rating recommended by the PEB. The applicant was discharged on 30 March 1999 with a 20 percent disability rating. The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and rated at the time of his discharge.
ARMY | BCMR | CY2008 | 20080001289
Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. Although the applicant contends that his medical conditions were not properly considered by the medical board and that he was not given adequate time to provide medical information to the board from his doctors but was discharged, he has not provided any evidence to show his medical conditions were not properly considered. Although the...
ARMY | BCMR | CY2004 | 20040011085C070208
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. 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...
ARMY | BCMR | CY2011 | 20110002853
The physician noted that he would be released from military service on 2 July 2007. The evidence of record also shows that during his VA Compensation And Pension Examination conducted prior to his discharge from active duty, PTSD was discussed; however, PTSD had not surfaced during his MEB or PEB. The applicant offers the fact that he was awarded a 70-percent disability rating from the VA for PTSD as proof that he should have been diagnosed with PTSD and received an increase in his...
ARMY | BCMR | CY2007 | 20070012513
The WAARNG either mistakenly processed the applicant through this channel, not connecting the fact that his neck condition might have been related to the June 1998 and March 2000 injuries, or deliberately processed him through this channel because there was no line of duty determination on his June 1998 and March 2000 injuries. Consequently, due to the two concepts involved, an individuals medical condition, although not considered medically unfitting for military service at the time of...
ARMY | BCMR | CY2002 | 2002081807C070215
The applicant requests correction of military records as stated in the application to the Board and as restated herein. APPLICANT REQUESTS: That his records be corrected to show that he was retired by reason of physical disability. EVIDENCE OF RECORD : The applicant's military records show:
ARMY | BCMR | CY2010 | 20100026557
d. A DD Form 2808 (Report of Medical Examination) shows the reporting physician indicated: * the applicant's psychiatric and stomach conditions were considered normal * the applicant's indigestion and stomach problems were minimal (gastro esophageal reflux disease (GERD), for which he was taking no medications) * the applicant was previously diagnosed with PTSD but required no use of psychiatric medication for over 3-4 years * the applicant did not object to his PTSD and stomach condition...
ARMY | BCMR | CY2008 | 20080017110
He also pointed out that the following diagnoses should be included in the MEBD: pain management, prescription of morphine along with other medications daily; sinus tachycardia; atypical chest pain; hypertension; upper and lower extremities hampered prompting the use of a wheelchair; left leg atrophy; left shoulder weakness; cellulitiis of right arm; cutaneous chest wall nodule and biopsy; and non-alcoholic liver disease. f. The PEB recommended a rating of 20 percent and that the applicant...
ARMY | BCMR | CY2006 | 20060009046
BOARD DATE: 29 March 2007 DOCKET NUMBER: AR20060009046 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The applicant was also informed that his service connected compensation for left foot disability was currently 30 percent disabling and would be continued. The Army must find that a service member is physically unfit to reasonably perform his or her duties...