BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100021692 


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 reconsideration of his earlier petition requesting his  28 December 1997 discharge by reason of disability with severance pay be voided and that he be retired by reason of physical disability on that same date.

2.  The applicant states he should have been medically retired based on his physical condition at the time of his discharge.  He claims he was awarded social security disability less than 1 year after his discharge.

3.  The applicant provides the following evidence in support of his request:

* State of Florida workers' compensation judgment
* various medical treatment records
* Department of Veterans Affairs (VA) letter
* Congressional Inquiry packet

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090020087 on 20 July 2010.

2.  During its original review of the case, the Board found the applicant's disability was properly rated by competent medical authorities and that his separation with severance pay was in compliance with applicable law and regulation.  It further determined the evidence provided by the applicant was not sufficient to show the evaluations of the physical evaluation board (PEB) were incorrect or that he should have received a higher rating at the time of his separation.  It further indicated the fact that the VA, in its discretion, awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency and that the VA decision does not, in itself, establish entitlement to additional disability compensation or medical retirement from the Army.

3.  The applicant provides a final workers' compensation judgment from the State of Florida, dated 11 August 1999, as new evidence.  This document shows the judgment was the result of a claim the applicant made that he was injured by an accident that occurred during his employment with a civilian company in Florida on 1 May 1998.  The applicant claimed he repeatedly injured his back and knee as a result of continuing to have to subdue patients residing in the treatment facility.  The VA Rating Decision and various medical treatment records were available to and considered by the Board during its original review.

4.  The applicant's record shows a PEB convened at Fort Lewis, Washington, on 15 September 1997 to consider the applicant's case.  The PEB found the applicant was unfit for further service based on one unfitting condition of chronic right knee pain.  The PEB found the remaining evaluated conditions were not unfitting.  The PEB assigned a disability rating of 10 percent and recommended the applicant's separation with severance pay.

5.  On 8 October 1997 after initially non-concurring with the PEB findings and recommendations, the applicant withdrew his request for a formal PEB hearing and concurred with the original findings and recommendations of the 15 September 1997 PEB.

6.  On 26 December 1997, the applicant was honorably discharged by reason of disability with severance pay.  He completed 14 years, 2 months, and 8 days of active military service and received $46,720.80 in severance pay.

7.  The Social Security Administration determined the applicant became disabled under its rules effective 31 May 1998.  The VA determined the applicant was totally disabled effective 11 December 1998.

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.  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.

9.  Paragraph 3-5 of Army Regulation 635-40 contains guidance on rating disabilities.  It states 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 Army Regulation 635-40 contains guidance on processing through the PDES, which includes the convening of an 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.  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 record should be corrected to show he was medically retired because he was awarded social security disability less than a year after his discharge has been carefully considered.  However, there is insufficient evidence to support this claim.

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.  The record shows the PEB ultimately determined the applicant was unfit for further service based on a chronic right knee pain condition and granted him a 10 percent disability rating.  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.  Although the evidence of record confirms the applicant was treated for multiple medical conditions while serving on active duty, only his chronic right knee pain condition was determined to be unfitting for further service at the time of his PDES processing.  The other service-connected conditions the applicant suffered from that were evaluated by the MEB and PEB were determined not to be unfitting for further service.  As a result, in accordance with the governing law and regulation, they did not contribute to the disability rating assigned by the PEB.  Therefore, there is an insufficient evidentiary basis to change the 
10-percent disability rating assigned the applicant at the time of his discharge.

4.  The VA rating decision and medical treatment records provided by the applicant confirm he is being treated for several service-connected conditions that support the higher disability rating and permanent disability determination by the VA.  However, the VA is not required by law to determine medical unfitness for further military service.

5.  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.

6.  The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  As a result, the applicant was properly compensated with severance pay at the time of his discharge and he is now properly being rated, treated, and compensated for all of his service-connected conditions by the VA.

7.  The subsequent workers' compensation judgment provided by the applicant shows he received this compensation for injuries he received on a civilian job subsequent to his discharge.  These injuries have no bearing or impact on the disability rating he was assigned at the time of his discharge, which was based solely on one unfitting condition.

8.  The reconsideration request and material now submitted by the applicant fail to provide an evidentiary basis to call into question the validity of the rating and separation decision made by competent authority at the time of his PDES processing.

9.  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 or that would support amendment of the original decision in this case.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090020087, dated 20 July 2010.



      __________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)                                         AR20100021692



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ABCMR Record of Proceedings (cont)                                         AR20100021692



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