IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100023368 


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 correction of his military records to show that he was medically retired due to physical disability with a rating of 60%.

2.  The applicant states that the Medical Evaluation Board (MEB), Walter Reed Army Medical Center (WRAMC), Washington, DC, gave him an initial rating of 10% for Left Hip Stress Fracture based on his medical records.

   a.  The Department of Veterans Affairs (VA) Regional Office, Winston-Salem, NC, then awarded him a 60% disability rating for Left Hip Stress Fracture, Bilateral Knee Pain, Anxiety Disorder, and Gastroenteritis; all based solely on his medical records and no difference in the documentation.

   b.  He is considered disabled by the State of North Carolina.  However, the Department of Defense identification cards that were issued to him and his family expired on 12 November 2010, along with their eligibility for benefits, which negatively affects him and his family.

3.  On 18 February 2011, the Army Board for Correction of Military Records (ABCMR) advised the applicant that the ABMCR can consider his issue; however, he also had the option of applying to the Department of Defense Physical Disability Board of Review (PDBR).  He was also advised that while he had the option of applying to either the ABCMR or the PDBR, the decision of either Board is final and if denied by one of the Boards, he may not apply to the other Board on the same issue.

4.  On 28 February 2011, the applicant elected to continue with his application for disability review to the ABCMR and he forwarded his election to the ABCMR through his congressman.

5.  The applicant provides copies of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), DA Form 751 (Telephone or Verbal Conversation Record), DD Form 214 (Certificate of Release or Discharge from Active Duty), and a VA letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 24 October 2001.  Upon completion of training he was awarded military occupational specialty (MOS) 35L (Counterintelligence Agent).  He was promoted to specialist/pay grade E-4 on
1 October 2004.

2.  The applicant entered active duty in the Regular Army on 21 September 2005.  Upon completion of training he was awarded MOS 31B (Military Police).

3.  A DA Form 199 shows an informal PEB convened on 7 August 2008 to consider the applicant's medical condition.  The PEB considered, in pertinent part, the applicant's MEB proceedings, physical profile, and health records.

   a.  The PEB found the applicant unfit due to chronic left hip pain associated with a stress fracture of left superior pubic ramus confirmed by bone scan in 2007.

   b.  He was rated in accordance with (IAW) Veterans Affairs Schedule for Rating Disabilities (VASRD) 4.59 for painful motion and IAW 4.10, 4.40, 4.45, and 4.59.  The rating includes consideration of functional loss due to factors such as pain on repeated use and painful motion, fatigability, incoordination, weakness with repetitive use, and flare-ups.

   c.  The PEB rated his combined disability at 10% and recommended separation with severance pay, if otherwise eligible.

   d.  A DA Form 751 shows the applicant verbally agreed with the informal PEB decision via a telephone conversation.  The document was signed by legal counsel and the President, PEB.

   e.  The PEB proceedings were approved on 14 August 2008.

4.  U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Bragg, NC, Orders 246-0252, dated 2 September 2008, reassigned the applicant for transition processing and discharge on 12 November 2008.  The order shows his percentage of disability was 10% and that he was authorized disability severance pay in pay grad E-4 based on 4 years, 1 month, and 1 day of service under Title 10, U.S. Code, section 1208.

5.  The applicant's DD Form 214 shows he entered active duty this period on
21 September 2005 and he was honorably discharged on 12 November 2008 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 (Procedures), based on "disability, severance pay, non-combat related."

   a.  He had completed 3 years, 1 month, and 22 days of net active service this period and 11 months and 9 days of total prior active service.

   b.  Item 18 (Remarks) shows he was authorized disability severance pay in the amount of $17,080.80.

6.  In support of his request, the applicant provides, in pertinent part, a VA Regional Office, Winston-Salem, NC, letter, dated 12 April 2010, that summarized the applicant's VA benefits.  The applicant was granted service-connected disability with a combined rating of 60%.

7.  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%.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30%.

8.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was retired due to permanent disability with appropriate disability ratings because the VA awarded him a rating of 60% based on his service-connected disabilities.

2.  Records show an informal PEB considered the applicant's medical condition based on the MEB proceedings and his health records.

   a.  The PEB found the applicant unfit due to chronic left hip pain, he was rated IAW the VASRD with a combined disability at 10%, and recommended for separation with severance pay.

   b.  There is no evidence the applicant had any other medical conditions that were found physically unfitting for military service.

   c.  The applicant concurred with the PEB decision and the PEB proceedings were approved on 14 August 2008.  Accordingly, the applicant was separated on 12 November 2008.

3.  The evidence of record shows that statutory and regulatory guidance provides that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition can only be rated to the extent that the condition limits the performance of duty.  The VA (and some other Government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA to give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other Government agency), in its discretion, awarded the applicant a disability rating for conditions that were determined to meet Army retention standards, is a prerogative exercised within the policies of that agency.

4.  The applicant provided no evidence that demonstrates the approved informal PEB proceedings were in error, arbitrary or unjust.
5.  Thus, it is concluded the applicant's informal PEB is correct in both law and regulation.  Therefore, there is no basis for granting the applicant's 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 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)                                         AR20100023368



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ABCMR Record of Proceedings (cont)                                         AR20100023368



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