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ARMY | BCMR | CY2009 | 20090018891
Original file (20090018891.txt) Auto-classification: Denied

		IN THE CASE OF:	

		BOARD DATE:	 27 May 2010 

		DOCKET NUMBER:  AR20090018891 


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 a disability retirement vice disability separation.

2.  The applicant states he was medically discharged with severance pay for chronic retrocalcaneal bursitis bilaterally on his left and right feet.  He feels that the medical evaluation on his feet was rushed and he was not properly treated during his time in the Army.  As a result, he has since continued to have medical problems with his feet and has sought medical attention through the Department of Veterans Affairs (VA).  Currently, his situation has worsened to the point that the VA has increased his disability rating and he is going to need more surgery to manage the chronic pain.

3.  In support of his application, the applicant provides copies of his records pertaining to his medical evaluation, his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) Proceedings, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and his VA Rating Decision.

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.  His military records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 21 July 1994.  He enlisted in the Regular Army on 19 October 1994 for 3 years in pay grade E-1.  He completed training and he was awarded military occupational specialty 68F (Aircraft Electrician).

3.  On 4 April 2002, he was assigned a permanent profile of 113111 for Chronic Achilles Tendonitis.  His assignment limitations were:  no running, no rucking, no jumping, no marching, and no standing over 20 minutes without a 10 minute break.

4.  On 8 June 2002, an MEB convened and considered his diagnosis of "chronic retrocalcaneal bursitis, bilaterally, left greater than right, medically unacceptable IAW [in accordance with] A[rmy] R[egulation] 40-501 [Standards of Medical Fitness], chapter 3-41e(1)."  The MEB recommended he be referred to a PEB.  The board noted the applicant did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The findings and recommendations of the MEB were approved on 8 June 2002 and he agreed with the findings and recommendations of the MEB on 10 June 2002.

5.  On 17 June 2002, an informal PEB convened and considered his disabilities of chronic retrocalcaneal bursitis with mild reduction of motion on the left.  The PEB determined that his other medical conditions, bilateral sensorineural hearing loss and hypercholesterolemia, were not unfitting and non-disqualifying; therefore, they were not ratable.  The PEB reviewed all available medical records and determined that his medical condition prevented performance of duty in his grade and military specialty.  The PEB found the applicant physically unfit and recommended a combined rating of 10 percent (%) and separation with severance pay, if otherwise qualified.  On 18 June 2002, he concurred with the PEB and waived his rights to a formal hearing.

6.  He was honorably discharged from active duty, in pay grade E-5, on 24 July 2002, under the provisions of Army Regulation 635-40, paragraph 4-24b(3), for disability with severance pay.

7.  He submitted a copy of his VA Rating Decision, dated 15 September 2009, that he shows his service-connected disability for right retrocalcaneal bursitis was increased to 20%, the assigned evaluation was the maximum allowed under their current evaluation criteria.  His 10% disability rating for left retrocalcaneal bursitis was continued.  His previous denial for service connection for acute retropatellar pain syndrome, left knee and right knee pain was confirmed and continued.

8.  In the processing of this case, on 18 March 2010, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA), Washington, DC.  The advisory official stated that the applicant's sole diagnosed condition in 2002 was bursitis of the feet, left greater than right.  An informal PEB properly rated his bursitis at 10% and he was separated with severance pay on 24 July 2020.  He concurred with all of the MEB and PEB findings and waived his right to a formal hearing.  He now requests additional military disability compensation because his feet have become more painful and he now might require surgery.  He has not claimed that the PEB findings were incorrect in 2002 nor has he presented any evidence of any error regarding his 2002 separation.  Subsequent exacerbations of a condition a PEB found to be unfitting, or that the VA increased their disability rating for, is not evidence or any error in his military disability processing.  Military disability severance pay is for all unfitting conditions rated below 30% at the time of separation and does not change at separation (Title 10, U.S. Code, section 1203).  The VA is responsible for adjusting any of the VA’s compensation after separation and it appears that they have properly done so in 2009.  This subsequent increase in the VA rating is not evidence of any PEB error. The advisory official recommended no change to the applicant’s military records.

9.  On 22 March 2010, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

10.  Army Regulation 635-40 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 office, grade, rank, or rating.  It provides for medical evaluation boards, 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 Army Regulation 40-501, chapter 3.  Soldiers are referred into the Army Physical Disability Evaluation System when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3. 

11.  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.  The VA has neither the authority nor the responsibility for determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.

12.  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 evidence of record shows that on 18 June 2002 a PEB found the applicant physically unfit with a combined rating of 10%.  The PEB recommended his separation for disability with severance pay.  He was separated from active duty on 24 July 2002 with entitlement to severance pay.  He contends that he should have been awarded a higher disability rating for a medical retirement.

2.  In the advisory opinion provided to the Board, the advisory official stated that the applicant concurred with all of the MEB and PEB findings and waived his right to a formal hearing.  There was no claim by the applicant in 2002 that the PEB findings were in correct and he has not presented any evidence of any error regarding his 2002 separation.  The VA is responsible for adjusting any of the VA’s compensation after separation and it appears they did so in 2009 and that increase was not evidence of any PEB error.

3.  His contentions and the evidence he submitted do not demonstrate error or injustice in his MEB or PEB processing nor error or injustice in the disposition of his case by separating him from active duty.

4.  The award of VA rating or an increase of a VA rating does not establish entitlement to an increased disability rating or medical discharge and/or medical retirement.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. In this case, the applicant was properly evaluated and is being compensated for his service-connected medical conditions by the VA.

5.  In view of the foregoing, there is no basis for granting the applicant’s request.

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)                                         AR20090018891



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20090018891



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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