IN THE CASE OF:	  

		BOARD DATE:	  14 DECEMBER 2010

		DOCKET NUMBER:  AR20100014104 


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 with severance pay be changed to disability retirement.

2.  He states he was discharged from the service with disability severance pay, but was awarded a 70-percent combined disability rating by the Department of Veterans Affairs (VA).  He states he should have been medically retired.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 November 2008, and his VA rating decision, dated 14 October 2009.

CONSIDERATION OF EVIDENCE:

1.  After prior service in the Air and Army National Guard, the applicant enlisted in the Regular Army for a period of 6 years on 13 November 2001 and held military occupational specialty 25B (Information Systems Operator-Analyst).  He executed a series of extensions and/or reenlistments and attained the rank of staff sergeant/E-6.  His records show he served in Afghanistan from 25 March 2004 to 24 March 2005 and in Iraq from 6 February 2007 to 22 December 2007.

2.  On 19 September 2008, a medical evaluation board (MEB) convened at the Dwight David Eisenhower Army Medical Center, Fort Gordon, GA, and referred his case to a physical evaluation board (PEB) based on the following diagnosed medical conditions incurred while he was entitled to base pay:  chronic low back pain secondary to focal disk protrusion at L5-S1, bilateral knee pain, bilateral ankle pain, right shoulder pain, and obstructive sleep apnea.  On 4 October 2008, the board findings and recommendation were approved.  On 7 October 2008, he concurred with the MEB's findings and recommendations.  

3.  On 10 October 2008, an informal PEB considered his case and found his condition prevented him from performing his duties and determined that he was physically unfit due to spinal stenosis L5-S1.  He was rated under the VA Schedule for Rating Disabilities (VASRD) code 5238 (spinal stenosis) and granted a 10-percent disability rating.  It further concluded the MEB's diagnoses 2-5 were medically acceptable and not unfitting or ratable.  The PEB recommended he be separated from the service with entitlement to severance pay if otherwise qualified.  The applicant concurred with the PEB's findings and recommendations and waived his right to a formal hearing of his case on 21 October 2008.

4.  On 30 November 2008, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of physical disability with severance pay.  His DD Form 214 confirms he completed 6 years, 11 months, and 18 days of active military service during this period of enlistment.  This form also shows he received $49,680.00 in disability severance pay in conjunction with his discharge. 

5.  He submitted a copy of the VA Rating decision, dated 14 October 2009, in which he was granted a 70-percent overall disability rating and awarded service-connected disability compensation for sleep apnea, right shoulder strain, left shoulder strain, L5-S1 spondylosis and lumbar strain, and bilateral tinnitus.
 
6.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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.

	a.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

	b.  Paragraph 3-5 contains guidance on rating disabilities.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Any non-ratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable.

7.  Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD shows that for diagnostic code 5238, the disability rating for spinal stenosis, with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months, is 10 percent.

8.  Title 38, U.S. Code, sections 1110 and 1131, 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.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.

9.  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 rated at least 30 percent.

10.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested his discharge with severance pay be changed to disability retirement.  His request was carefully considered; however, there is insufficient evidence to support this request.

2.  The evidence of record shows he suffered from a medical condition that rendered him unable to satisfactorily perform the duties of his grade and specialty.  His immediate commander and medical personnel recommended his referral to an MEB due to chronic low back pain.  Consequently, his records were evaluated by an MEB that referred him to a PEB.  The PEB found him medically unfit, rated his disabling condition at 10 percent, and recommended his separation by reason of physical disability with entitlement to severance pay.

3.  He now believes he should receive an upgrade of his disability status because the VA granted him a different percentage for low back pain as well as his other conditions of sleep apnea, bilateral shoulder strains, and tinnitus.  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) and affects the individual's civilian employability.  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.  Any rating action by the VA does not compel the Army to modify its rating.

4.  His physical disability evaluation was conducted in accordance with law and regulations and there does not appear to be an error or an injustice in his case.  In view of the circumstances in this case, there is insufficient evidence to grant 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 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)                                         AR20090007788



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ABCMR Record of Proceedings (cont)                                         AR20100014104



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