IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100023569 


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 honorable discharge due to disability with entitlement to severance pay be changed to a medical retirement.  

2.  He states he/his:

* strongly disagrees with the statement on the Physical Evaluation Board (PEB) proceedings 
* injured his left shoulder while on active duty in Saudi Arabia in 1994
* was deployed with the 11th Air Defense Artillery
* medical board in 2001 determined he was non-deployable because of his left shoulder injury, but the decision was overruled by a general officer
* reinjured his shoulder when he was deployed
* was granted 10 percent (%) service-connected by the Department of Veterans Affairs (VA) for his left shoulder 
* understands he will have to pay back the balance of his severance pay 

3.  He provides a VA Form 21-4138 (Statement in Support of Claim).  

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 initially served in the U.S. Army Reserve from 15 December 1986 through 29 September 1988.  He enlisted in the Regular Army on 30 September 1988.  

3.  He served in Southwest Asia (SWA) from 27 June 1992 to 13 November 1992.  He arrived in SWA again on 12 April 1994.  

4.  His service record contains a Standard Form 600 (Chronological Record of Medical Care) which shows he received treatment on 6 May 1994 at the Khobar Army Clinic in Saudi Arabia for dislocation of his left shoulder.  The examining physician indicated the applicant had a past history of shoulder dislocation, had numbness and tingling and had hit his shoulder against a door.  

5.  He departed SWA on 28 August 1994.  He was honorably discharged on 10 February 1996.  

6.  He enlisted in the Army National Guard on 11 February 1996.

7.  On 10 January 2001, he was given a permanent physical profile of 131111 for left shoulder pain with decreased range of motion (ROM) after surgical repair of dislocation.  The unit commander determined this permanent change in profile serial did not require a change in the applicant’s military occupational specialty (MOS) and duty assignment.  

8.  The Medical Duty Review Board Worksheet, dated 3 February 2001, indicated the applicant had left shoulder pain with decreased ROM after surgical repair of dislocation.  His physical profile was 131111 and MOS profile was 111221.  The worksheet indicated the entries “Fully Fit,” “Reclassify,” and “Deploy.”

9.  He was ordered to active duty on 6 March 2003 in support of Operation Enduring Freedom.  

10.  He underwent a physical examination on 7 March 2003 for the purpose of retention.  In Block 77 (Summary of Defects and Diagnoses) of his DD Form 2808 (Report of Medical Examination), the examining physician indicated the shoulder was fully healed and he had no duty restrictions.  He marked “Yes” in block 21 of his DD Form 2807-1 (Report of Medical History), dated 7 March 2003, indicating he had been a patient in a hospital and explained he had surgery on his left shoulder.  

11.  On 8 March 2003, the validation of the Medical Duty Review Board results, dated 8 July 2001, was approved for acceptance in lieu of the MOS Medical Retention Board.  The applicant was retained in the primary MOS 31R (Multichannel Transmission Systems Operator).  

12.  He served in Iraq from 13 June 2003 to 15 August 2003.  

13.  On 26 May 2004, an informal PEB determined he was unfit for chronic left shoulder pain and instability predating mobilization (had Bankart report X3); full range of motion without documented dislocations, rated as analogous to degenerative osteoarthritis without loss of joint motion.  The PEB recommended he be separated with severance pay with a 0% disability rating.  He concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.  

14.  The PEB proceedings stated “This disability existed prior to mobilization, is not the proximate result of military service and was not permanent [sic] aggravated by service, but is compensable in accordance with 10 USC 1207a (Eight Year Rule).”  The PEB proceedings informed the applicant that he had been rated in accordance with the Eight Year Rule.  However, because his unfitting conditions were non-duty related, his personnel records indicated he was eligible to apply for the Army National Guard Early Reserve Retirement Eligibility Program in lieu of separation for disability.  He was advised to consider requesting termination of disability separation processing so he could submit an application for this program through National Guard channels.  

15.  He was honorably discharged from active duty on 30 June 2004 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability with severance pay.  

16.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was discharged from the Army National Guard and as a Reserve of the Army on 30 June 2004.  

17.  His service record contains page 2 of a VA Rating Decision which shows he was granted service-connection for left shoulder instability (10%) and fistula in ano (10%).  

18.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  

19.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30%.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

20.  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%.

21.  Title 10 USC, Sec. 1207a. - Members with over eight years of active service: eligibility for disability retirement for pre-existing conditions:  

   a.  In the case of a member described in subsection (b) who would be covered by section 1201, 1202, or 1203 of this title but for the fact that the member's disability is determined to have been incurred before the member became entitled to basic pay in the member's current period of active duty, the disability shall be deemed to have been incurred while the member was entitled to basic pay and shall be so considered for purposes of determining whether
the disability was incurred in the line of duty. 
   
   b.  A member described in subsection (a) is a member with at least eight years of active service.

22.  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 an error or injustice in the Army rating.



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he strongly disagrees with the statement on his PEB proceedings is acknowledged.  However, his service record does not indicate an error or injustice exists in this case.  

2.  His 6 May 1994 Standard Form 600 indicates he was treated on 6 May 1994 for dislocation of his left shoulder while in SWA.  This medical document also indicates he had a past history of shoulder dislocation.  Therefore, the statement “This disability existed prior to mobilization is not the proximate result of military service” was properly recorded on his PEB proceedings.   

3.  The evidence of record shows he underwent a Medical Duty Review Board in February 2001 and was found fully fit and deployable at that time.  

4.  An informal 26 May 2004 PEB found him physically unfit for his chronic left shoulder pain and instability at a 0% disability rating.  As a result he was discharged from active duty under the provisions of Army Regulation 635-40 by reason of disability with severance pay.  

5.  The law provides for a retirement of a member who has at least 20 years of service or a disability rated at least 30%.  Since he was given a 0% combined disability rating, he did not meet the requirements for a medical retirement; however, his disability was compensable based on the Eight Year Rule.  

6.  He has provided no evidence which shows that his disability processing was in error or unjust or that his conditions were improperly evaluated such as to warrant a rating higher than 0%.  Therefore, there is no basis for granting him a medical retirement.  

7.  Although he was granted service-connection for left shoulder instability (10%) and fistula in ano (10%), the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  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.  In any case, the VA's 10% rating would not have qualified him for a medical retirement, either.



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)                                         AR20100023569





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ABCMR Record of Proceedings (cont)                                         AR20100023569



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