IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20090020087 


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 his discharge by reason of disability with severance pay on 26 December 1997 be voided and that he be retired by reason of permanent disability.

2.  The applicant states that he was discharged medically and rated at 10 percent for his knees and while he was still on active duty he was rated at 60-percent disabled by the Department of Veterans Affairs (VA).  He further states that he believes he should have been medically retired from the Army with more than a 10-percent disability rating because the Social Security Administration (SSA) found him totally disabled effective 31 May 1998.

3.  The applicant provides copies of:

* his discharge orders
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his disability rating decision from the SSA
* 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.  The applicant enlisted in the Regular Army on 19 October 1983 and remained on active duty through a series of continuous reenlistments.  He served overseas in Germany, Honduras, Southwest Asia, Somalia, and Cuba.  He was promoted to pay grade E-6 on 1 November 1995.  In 1995, he attended and completed training as a motor transport operator and was transferred to Fort Lewis, Washington.  On 27 August 1997, a medical evaluation board (MEB) convened at Madigan Army Medical Center, Tacoma, Washington, and diagnosed the applicant as having:

* Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM IV) – Axis I – post-traumatic stress disorder (PTSD), chronic, severe
* DSM IV – Axis I – dysthymic disorder, chronic, moderate
* DSM IV – Axis II – personality disorder, not otherwise specified, chronic, severe
* DSM IV – Axis III:
* low back pain, mechanical
* right knee chondral effect
* mild intermittent asthma
* gout
* verrucous papules on feet
* DSM IV – Axis IV – stress, moderate
* DSM IV – Axis V – global assessment of functioning 60 – moderate symptoms

3.  The MEB recommended that the applicant be referred to a physical evaluation board (PEB).  On 29 August 1997, the applicant indicated that he did not desire to continue on active duty.  He disagreed with the findings and recommendations of the MEB and submitted an appeal.

4.  The applicant appealed the MEB findings and recommendations contending:

* that he had 14 years of service and not 13 years
* that his dysthymic disorder did not occur until 1995
* that he had been treated for asthma since 1992
* that his stress level is impacting his breathing, not his asthma
* that his hearing should be an H-2 instead of an H-1 because he has lost hearing in his right ear
* that his breathing condition presented a major problem during any type of exercise; his physical profile was improper for his condition and was causing more injury than good
* that his physical profile indicating he could lift up to 40 pounds would cause further damage to his knees

5.  Meanwhile, the applicant filed an Inspector General complaint regarding his dissatisfaction with the results of the MEB.  As a result, the approval authority determined that in order to avoid an appearance of impropriety, the Deputy Commander for Clinical Services should exercise his prerogative to review the case and the applicant's appeal.

6.  The applicant's appeal was considered and the original findings and recommendations were confirmed by the Deputy Commander for Clinical Services (a Medical Corps colonel) on 9 September 1997.

7.  On 16 September 1997, an informal PEB convened at Fort Lewis, Washington, to consider the applicant's medical conditions addressed by the MEB.  The PEB determined that his only unfitting condition was chronic right knee pain with full thickness chondral lesion of the lateral femoral condyle, status post-arthroscopic microfracture procedure with residuals of chronic pain on motion.  The PEB determined the remainder of his conditions noted by the MEB were not unfitting and recommended that the applicant be separated with severance pay with a 10-percent disability rating.

8.  The applicant initially did not concur with the findings and recommendations of the PEB and demanded a formal hearing with a personal appearance.  The applicant was scheduled for a formal hearing on 23 October 1997; however, on 8 October 1997, he withdrew his request for a formal hearing and accepted the findings and recommendations of the PEB.  The PEB was approved on 9 October 1997.

9.  On 26 December 1997, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) due to disability with severance pay.  He had served 14 years, 2 months, and 8 days of total active service and received $46,720.80 in disability severance pay benefits.

10.  The SSA document provided by the applicant shows he became disabled under SSA rules effective 31 May 1998 and entitled to SSA benefits of $822.00 per month effective November 1998.

11.  The VA Rating decision provided by the applicant shows that on 3 September 1997, the VA granted him a combined service-connected rating of 60 percent effective 1 August 1997.  The VA granted him the following disability ratings:

* 30 percent – PTSD with dysthymic disorder
* 10 percent – tinnitus, bilateral
* 10 percent – hallux valgus, bilateral with plantar warts and fracture, left fifth toe
* 10 percent – asthma
* 10 percent – degenerative joint disease, right knee, post-operativer (limitation of motion) and left knee
* 10 percent – lumbosacral strain

12.  In the processing of this case a staff advisory opinion was obtained from the U.S. Army Physical Disability Agency in Washington, DC.  Officials at that agency opine, in effect, that the PEB's findings properly reflect the evidence that the applicant's painful knee was the only condition that significantly hindered his performance as a truck driver.  He may have had other conditions in 1997 but the evidence did not support that their symptoms were so pronounced that they materially interfered with his performance of duty.  Only conditions that are found unfitting are compensable under the military disability system.  Officials at the U.S. Army Physical Disability Agency recommend no change to the applicant's records.

13.  The advisory opinion was provided to the applicant for comment.  He responded that because he was granted an extension of time in service because of many physical disabilities that needed to be evaluated before his release and because the SSA and the VA granted him disability benefits, he should have been retired by the Army.  He submits additional documents to support his argument.

14.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  That regulation also provides for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings.

16.  Title 38, U.S. Code, sections 310 and 331, permits the 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

17.  There is a difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based upon the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA's ratings are based upon an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  Based on the available evidence, it appears that the applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities by competent medical authorities and his separation with severance pay was in compliance with laws and regulations in effect at the time.

2.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing and are based upon conditions that render the Soldier unfit to perform his duties.  The Department of the Army ratings become effective the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show that the evaluation and the rating rendered by the PEB were incorrect or that he should have received a higher disability rating at the time of his separation.

4.  The fact that the VA, in its discretion, has awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the department.

5.  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 submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20090020087



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ABCMR Record of Proceedings (cont)                                         AR20090020087



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