IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100011275 


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 his records to show he was medically retired instead of honorably discharged with entitlement to severance pay.

2.  The applicant states he injured his lower back while on active duty.  As a result of this injury, he was medically discharged with a 20% disability rating.  His injury has gotten worse and the Department of Veterans Affairs (VA) awarded him a higher rating.  Additionally, since he was on active duty, he should have been given the opportunity to receive retired pay due to his medical discharge.  At the time he was discharged, he had over 20 years of satisfactory military service.  His understanding at the time was that if he accepted the severance pay, he would forfeit the retirement.  It did not make sense to him to wait until age 60 to receive retired pay due to an injury that was the cause of his discharge.  Somehow, he feels he is being penalized for his injury.  Since the medical board found him unfit for continued service, he should be compensated for his 20 years of honorable service. 

3.  The applicant provides the following documents:

* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* Self-authored rebuttal to the MEB
* Memorandum for record
* Narrative Summary (NARSUM)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Waiver of consideration by the DOD Physical Disability Board of Review
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 he was born on 19 May 1964.

3.  The applicant's records show he initially enlisted in the Puerto Rico Army National Guard (PRARNG) in or about August 1981 and held military occupational specialty 11B (Infantryman).

4.  On 18 January 2003, he was ordered to active duty and reported to Fort Stewart, GA, for deployment training.  Shortly after entering active duty, he complained of pain caused by wearing equipment.

5.  His NARSUM shows he began experiencing recurring and aggravating pain due to wearing a Kevlar and a vest and road marches with a rucksack.  During one of the road marches, he fell (28 July 2003) and felt immediate pain in his lower back.  He was seen at Winn Army Community Hospital (WACH) and underwent various treatments that included a CAT scan, x-rays, medications, and a restrictive physical profile.  He was ultimately (14 December 2004) diagnosed with lower back pain and neck pain.  The attending physician determined he did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and recommended his entry into the Physical Disability Evaluation System (PDES).

6.  On 21 March 2005, an MEB convened at WACH, Fort Stewart, GA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant had the medically-unacceptable condition of lower back pain with lumbar radiculopathy and an EPTS (Existed Prior to Service) neck pain with radiculopathy.  The MEB recommended he be referred to a PEB.  He elected not to agree with the MEB's findings and recommendation but indicated that he desired not to continue on active duty.

7.  He subsequently submitted a self-authored rebuttal to the MEB's findings and recommendations wherein he contended his neck pain was not EPTS.  His appeal was considered but the original MEB's findings and recommendations were confirmed. 

8.  On 22 April 2005, an informal PEB convened at Fort Sam Houston, TX, and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to chronic low back pain secondary to degenerative disc disease, without any lower extremity neurological evidence of radiculopathy.  He was rated under the VA Schedule for Rating Disabilities (VASRD) and was granted a 20% disability rating for codes 5299 and 5242.  

	a.  The PEB also considered his other medical condition of chronic neck pain and determined it was not separately unfitting therefore not ratable.  The PEB also noted he had a long history of neck pain and was rated by the VA for this condition; therefore, there was no evidence of permanent service-aggravation since his mobilization.  

	b.  The PEB recommended the applicant be separated with entitlement to severance pay if otherwise qualified.  

9.  On 9 May 2005, he indicated he did not concur with the PEB's findings and recommendations but waived his right to a formal hearing of his case.  In his appeal, he talked about the circumstances of his lower back and the protrusions he had.  He also noted that he suffered from spinal headaches, a hearing loss, and flat feet.  

10.  On 9 May 2005, he petitioned the ABCMR for correction of his PEB to show his neck condition was not EPTS and therefore warranted compensation.  However, at a later date, the Board denied his request due to lack of evidence that his neck condition was unfitting or aggravated by his service.

11.  On 19 May 2005, the applicant was issued his Notification of Eligibility for Retired Pay at Age 60 (his 20-year letter).

12.  On 20 May 2005, the U.S. Army Physical Disability Agency approved the PEB's findings and recommendations on behalf of the Secretary of the Army.

13.  His final election statement is not available for review with this case; however, he appears to have elected to be transferred to the Retired Reserve with entitlement to retired pay at age 60 in lieu of severance pay.  Accordingly, on 20 July 2005, Headquarters, Fort Stewart and Hunter Army Air Field, Fort Stewart, GA published Orders 201-0009 releasing him from active duty to the control of his USAR unit.

14.  He was honorably released from active duty on 12 August 2005 by reason of having completed his required active service.  His DD Form 214 shows he completed 2 years, 6 months, and 25 days of active service during this period.

15.  Effective 13 August 2005, the applicant as discharged from the ARNG and transferred to the Retired Reserve. 

16.  On 27 October 2010, the Defense Finance and Accounting Service (DFAS) verified that the applicant did not receive any disability payment.

17.  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.

18.  Title 10, U.S. Code (USC), 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%.  Title 10, USC, 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%.

19.  Title 10, USC, section 1213 (Effect of Separation on Benefits and Claims) states unless a person who has received disability severance pay again becomes a member of an armed force, the National Oceanic and Atmospheric Administration, or the Public Health Service, he is not entitled to any payment from the armed force from which he was separated for, or arising out of, his service before separation, under any law administered by one of those services or for it by another of those services.  However, this section does not prohibit the payment of money to a person who has received disability severance pay, if the money was due him on the date of his separation or if a claim by him is allowed under any law.

20.  Title 38, USC, 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 an 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 his records should be corrected to show he was medically retired instead of honorably released from active duty.

2.  The applicant sustained a medical condition subsequent to his mobilization.  He underwent an MEB that referred him to a PEB.  The PEB recommended his separation with entitlement to severance pay if otherwise qualified.  He did not concur.  After consideration of his rebuttal, the USAPDA approved the PEB's findings and recommendations.  

3.  He now believes he should have received a medical retirement for his low back condition because the VA granted him a higher rating percentage.  However, an award of a different rating by another agency does not establish error in the rating assigned by the Army's PDES.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) that affects the individual's civilian employability.  

4.  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.  The applicant was properly rated for his chronic low back pain condition. His physical disability evaluation appears to have been was conducted in accordance with law and regulations.   

5.  The applicant's faithful service in the USAR is not in question.  Additionally, his worsening condition is noted.  However, the PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated him at 20% for his low back condition.  There is no evidence that he should have been awarded a higher rating.  Since this rating was less than 30%, by law, he was only entitled to severance pay (or a transfer to the Retired Reserve since he had completed the required years of service of non-regular retirement).  It appears he elected to transfer to the Retired Reserve in order to collect retire pay at age 60.  

6.  In view of the foregoing evidence, he is not entitled to 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)                                         AR20100011275



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ABCMR Record of Proceedings (cont)                                         AR20100011275



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