IN THE CASE OF:	  

		BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100021109 


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, in effect, retirement by reason of physical disability or placed on the Temporary Disability Retired List (TDRL).

2.  The applicant states she should have been medically retired or placed on the TDRL due to injuries received on active duty.

3.  The applicant provides no supporting documents with her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 18 November 2004 for a period of 8 years with medical and administrative waivers.  She enlisted for training as a hospital food service specialist, an $8,000.00 enlistment bonus, entry in the Student Loan Repayment Program for $10,000.00, and a Montgomery GI Bill kicker of $200.00.

2.  On 31 August 2005, she was discharged from the USAR for the purpose of enlistment in the Regular Army (RA).  On 1 September 2005, she enlisted in the RA for a period of 3 years and assignment to Fort Hood, TX.  On 20 June 2007, she reenlisted for a period of 2 years.

3.  On 18 December 2007, she reenlisted for a period of 3 years and stabilization at Fort Hood.

4.  On 17 March 2009, an informal Physical Evaluation Board (PEB) convened at Fort Sam Houston, TX that considered the applicant's medical condition of thoracolumbar pain associated with scoliosis, status post-motor vehicle accident on 29 January 2008.  The PEB determined that there was sufficient evidence to support a finding that the current impairment existed prior to service (EPTS), was subsequently aggravated by such service, and rendered the Soldier unfit.  The PEB found the applicant physically unfit and recommended a 10 percent (%) disability rating percentage.

5.  On 20 March 2009, the applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of her case.

6.  On 27 April 2009, she was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability with severance pay, non-combat related.  She had served 3 years, 7 months, and 27 days of active service and received $18,679.20 in disability severance pay benefits.

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

8.  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.

9.  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.


10.  The Veterans Administration Schedule for Rating Disabilities (VASRD) provides, in pertinent part, that a 10% disability rating will be assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than
30 degrees but not greater than 40 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertical body fracture with loss of 50% or more of the height.

11.  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/her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating if awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rater as the conditions(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 applicable directives by competent medical authorities and her 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 becomes effective the date that permanency of the diagnosis is established.

3.  The VASRD provides that a 10% disability will be awarded for diagnostic code 5237 when the combined range of motion of the cervical spine is greater than 120 degrees but not greater than 235 degrees.  The applicant had a range of motion of 230 degrees and barely qualified for the 10% rating.

4.  The applicant has not provided any evidence or argument to show that the evaluation and the rating rendered by the PEB were incorrect or that she should have received a higher disability rating at the time of her separation.
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:

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)                                         AR20100021109



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ABCMR Record of Proceedings (cont)                                         AR20100021109



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