BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100020733 


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 by reason of physical disability with severance pay be changed to a disability retirement.  

2.  The applicant states he believes he should have been medically retired since he was physically disabled and within 90 days of retirement.  

3.  The applicant provides a Department of Veterans Affairs (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.  On 21 November 1991, the applicant’s commander confirmed the applicant’s garrison performance was unaffected by his physical condition but the condition did limit his ability to perform in the field.  The commander recommended the applicant's retention in service until retirement and assignment to appropriate duties commensurate with his limitations.  

3.  On 30 January 1991, a Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) found the applicant had a medical condition of mechanical low back pain which precluded his satisfactory performance in any MOS in a worldwide field environment.  The MMRB recommended the applicant's referral to the Physical Disability Evaluation System (PDES).

4.  On 3 July 1991, the applicant requested a medical separation board based solely on his low back pain and he submitted a statement supporting his decision not to request continuation on active duty (COAD).  He specifically requested his time in service be disregarded and that he be found unfit for further service which he believed was in his own best interest as well as the best interest of the Army.  

5.  On 8 August 1991, a Physical Evaluation Board (PEB) convened at San Francisco, CA, to consider the applicant's case.  It determined that his symptomatic low back pain condition was unfitting.  The PEB recommended the applicant receive a 0 percent (%) disability rating percentage with separation by reason of disability with severance pay.  On 9 August 1991, the applicant concurred with the findings and recommendations of the PEB and he waived a formal hearing of his case.  On 26 September 1991, the PEB findings and recommendations were approved by the proper authority on behalf of the Secretary of the Army.

6.  On 11 October 1991, the applicant was honorably discharged in the rank of sergeant first class/E-7 (SFC/E-7), by reason of disability with severance pay.  At the time of his discharge he had completed 19 years, 8 months, and 11 days of total active service.  He received $51,746.40 in severance pay.

7.  The applicant provides a VA rating decision, dated 25 November 2003, which shows he was granted service-connection for Post Traumatic Stress Disorder (PTSD) with a 70% disability rating percentage, effective 6 December 2000.  

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  

9.  The PDES regulation stipulates that 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.  Separation by reason of disability requires processing through the PDES.  Paragraph 3-5 contains guidance on rating disabilities.  It states, in pertinent part, that 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.

10.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a Medical Evaluation Board (MEB) to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

11.  Paragraph 6-6 of the PDES regulation provides guidance on COAD/
Continuation on Active Reserve (COAD/COAR).  It states Soldiers with 18 active or qualifying years of service are eligible for COAD/COAR and must be counseled and decline to request COAD/COAR in writing prior to final action through the PDES.

12.  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 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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge by reason of physical disability with severance pay should be changed to a retirement by reason of physical disability has been carefully considered.  However, there is an insufficient evidentiary basis to support granting the requested relief. 

2.  The evidence of record confirms the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met, and the applicant's rights were fully protected throughout the PDES process.  It further shows that a PEB ultimately determined the applicant was unfit for further service based on a low back pain condition and granted him a 0% disability rating percentage.  The PEB recommended the applicant's discharge by reason of disability with severance pay, and the applicant concurred with the findings and recommendations of the PEB.

3.  The record further shows that although he had the option of requesting to remain on active duty to complete sufficient service for retirement with the support of his commander, the applicant voluntarily declined to request COAD and urged that his time in service be disregarded and that he be discharged based on his low back pain condition.

4.  Nine years after his separation, the applicant was diagnosed with PTSD and granted a VA service-connected 70% disability rating percentage.  There is no evidence of record or independent evidence submitted by the applicant that shows he was suffering from this condition or that it was unfitting for further service at the time of his processing through the PDES. 

5.  A diagnosis and disability rating awarded 9 years after the fact does not call into question the findings and recommendations of the PEB, with which the applicant concurred.  Further, it does not support a retroactive award of a higher disability rating at the time of his discharge.  As a result, this VA rating decision does impact the original PEB assigned disability rating and does not support changing his disability separation to a disability retirement.

6.  The rating decision shows the applicant is properly being treated and compensated for his service-connected PTSD by the VA, the appropriate agency to provide these services for service-connected conditions not determined to be unfitting at the time of discharge.  Absent any evidence of error or injustice in the PDES process, there is an insufficient evidentiary basis to support granting the requested relief.  

7.  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:

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)                                         AR20100020733



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100020733



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1