IN THE CASE OF:	  

		BOARD DATE:	  4 May 2011

		DOCKET NUMBER:  AR20100020534 


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 her 2 March 2003 discharge be voided and that she be retired by reason of physical disability with a 40-percent disability rating.

2.  The applicant states she was given a 0-percent disability rating by the Army for her back; however, the Department of Veterans Affairs (VA) gave her a 
40-percent disability rating for the same disability and she was unaware that the Army was supposed to use the VA Schedule for Rating Disabilities, just as the VA did.

3.  The applicant provides a copy of her VA Rating Decision and a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 9 February 2000 for a period of 5 years, training as a micro-wave systems operator, and a cash enlistment bonus of $8,000.00.

3.  She completed basic training at Fort Jackson, South Carolina, and advanced individual training at Fort Gordon, Georgia.  She remained at Fort Gordon and was advanced to pay grade E-4 on 9 April 2002.  She was reassigned to Fort Belvoir, Virginia, on 27 June 2002.

4.  On 19 November 2002, a medical evaluation board (MEB) convened at Dewitt Army Community Hospital at Fort Belvoir and diagnosed the applicant as having:

* chronic low back pain
* right greater trochanteric bursitis
* mild right sacroiliac dysfunction
* depression

5.  The MEB recommended that she be referred to a physical evaluation board (PEB).  The applicant indicated she did not desire to continue on active duty and the findings and recommendations of the MEB were approved on 20 November 2002.  The applicant concurred with the findings and recommendations on 6 December 2002.

6.  On 11 December 2002, a PEB convened in Washington, DC, and determined that her condition of chronic low back pain and trochanteric bursitis were unfitting and assigned a 10-percent disability rating.  The PEB determined the remainder of her conditions were not unfitting.  The PEB determined she was physically unfit and recommended a rating of 10 percent.

7.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of her case.  The PEB was approved on 20 December 2002.

8.  On 2 March 2003, she was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability with severance pay.  She completed 3 years and 24 days of active service and was paid $9,999.00 in disability severance pay benefits.

9.  In the processing of this case a staff advisory opinion was obtained from the United States Army Physical Disability Agency (PDA) which opines, in effect, that the applicant should have been separately found unfit for her back conditions at 40 percent for severe recurring back pain with intermittent relief, due to intervertebral disc syndrome under VASRD 5293.  The PDA recommended that she be given a 50 percent permanent disability rating effective 2 March 2003.  The advisory opinion was provided to the applicant and she concurred with the opinion as written.

10.  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.

11.  Army Regulation 635-40 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings.

12.  Title 38, U. S. Code—Pensions, Bonuses, and Veteran’s Relief, Chapter 1, Department of Veterans Affairs, Part 4-Schedule for Rating Disabilities, in effect in 2003 when the applicant received her Army and initial DVA disability rating noted that the VASRD gives code 5293 (intervertebral disc syndrome) a 60 percent rating when it is pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc and little intermittent relief; a 40 percent rating when it is severe with recurring attacks and intermittent relief; a 20 percent rating when it is moderate with recurring attacks; a 10 percent rating when it is mild; and a zero percent rating when it is postoperative, cured.

13.  By 1 July 2003 Title 38—Pensions, Bonuses, and Veterans’ Relief, Chapter 1, DVA, Part 4—Schedule for Rating was changed to show that VASRD Code 5293 provided the following:

Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months
or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.

With incapacitating episodes having a total duration of at least six weeks during the past 12 months – 60 percent
With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months – 40 percent
With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months – 20 percent
With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months – 10 percent

For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  “Chronic orthopedic and neurologic manifestations” means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly or nearly so.

14.  Under the current Title 38—Pensions, Bonuses, and Veterans’ Relief, Chapter 1, DVA, Part 4-Scheduling for Rating Disabilities, Intervertebral Disc Syndrome is now identified under VASRD Code 5243.  The criteria for establishing disability ratings, however, remained unchanged from the 2003 edition.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted and found to have merit.  The available evidence suggests that the applicant was not properly evaluated regarding her back pain due to interverteral disc syndrome.

2.  Therefore, given the opinion of the PDA after a re-evaluation of the applicant’s case, it appears that it would be in the interest of justice to void her 2 March 2003 discharge by reason of disability with severance pay and instead retire her by reason of permanent disability with a 50 percent disability rating effective 2 March 2003, with entitlement to all back pay and allowances that flow from that change.

3.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact her nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.



BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by voiding her 2 March 2003 discharge by reason of disability with severance pay and instead retire her by reason of permanent disability with a 50 percent disability rating effective 2 March 2003, with entitlement to all back pay that flow from that change.




      _______ _   _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)                                         AR20100020534





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ABCMR Record of Proceedings (cont)                                         AR20100020534



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