IN THE CASE OF:	  

		BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100024501 


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 records to show he was medically retired instead of honorably discharged with entitlement to severance pay.  

2.  The applicant states he was rated by the Army with a 20% disability rating; however, the Department of Veterans Affairs (VA) rated him at 30% immediately after discharge. 

3.  The applicant provides his 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.  Having had prior active service from May 1991 to September 1994, the applicant's records show he enlisted in the Regular Army on 17 January 1996 and held military occupational specialties 11B (Infantryman) and 19K (M-1 Armor Crewmember).  He executed a 4-year reenlistment on 2 September 1998 and attained the rank/grade of corporal (CPL)/E-4. 

3.  On 28 November 2001, he injured his lower back while trying to lift a large tire in Baumholder, Germany, and on 25 June 2002, after having complained of low back pain since this injury, he underwent a series of evaluations and/or examinations, including cervical spine MRI (magnetic resonance imaging), thoracic spine MRI, and cervical spine series with oblique.  His narrative summary noted the following:  

	a.  He was performing a 500-pound heavy lifting when he heard three pops, two of which in the lumbar spine area and the third one in the mid-thoracic area.  He went to a German hospital where he was noted for right upper extremity numbness and tingling.  He was given muscle relaxer and started on physical therapy.  

	b.  He underwent a series of follow-up testing which revealed normal studies in the median and ulnar nerve and minimal increase in distal latency prolongation of the ulnar nerve with inching. He was placed on a more restrictive physical profile due to pain and decreased right hand gripping strength.  He was considered non-deployable.

	c.  His final diagnosis was that of a right brachial plexus neurapraxia by history and by examination persistent ulnar sensory greater than motor neurapraxia and thoracic and lumbar paraspinal muscle pain at the same incident of a 500-pound lift.  (Brachial plexus is a network of nerves that conducts signals from the spinal cord and is housed in the spinal canal of the vertebral column or spine to the shoulder, arm, and hand).

4.  On 20 September 2002, a medical evaluation board (MEB) convened at Landstuhl Medical Center, Germany, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of right brachial plexus neurapraxia by history and by examination persistent ulnar sensory greater than motor neurapraxia and thoracic and lumbar paraspinal muscle pain at the same incident of a 500-pound lift.  The MEB recommended he be referred to a physical evaluation board (PEB).  He agreed with the MEB's findings and recommendation and indicated that he did not desire to continue on active duty.

5.  On 9 October 2002, an informal PEB convened in Walter Reed Army Medical Center.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to right dominant brachial plexus neurapraxia by history with present examination showing persistent ulnar sensory greater than motor neurpraxia as well as thoracic and lumbar muscle pain and right shoulder muscle tender points.  He was rated under the VA Schedule for Rating Disabilities (VASRD), assigned code 8512, and granted a 20% disability rating.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.  The applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing on 15 October 2002.

6.  He was honorably discharged on 15 December 2002 under the provisions of paragraph 4-24B(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability with entitlement to severance pay.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 10 years, 2 months, and 28 days of active service.  

7.  He submitted a VA rating decision that shows he was awarded service-connected disability compensation, effective 16 December 2002, as follows:

* Right dominant brachial plexus neuropraxia, 20%
* Mechanical low back pain, 10%
* Residuals, of fracture jugal maxillary, 0%
* Residuals, crushing injury to middle finger, 0%
* Retro patellar pain syndrome, right and left knees, 0%
* Residuals of fracture, left fifth finger, 0%

8.  Army Regulation 635-40 establishes the Army 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 office, grade, rank, or rating.  It provides for MEBs which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

9.  Appendix B of Army Regulation 635-40 (in effect at the time of his discharge) states that Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.  Such decisions are to be made according to Title IV of the Career Compensation Act of 1949 (Title IV is now mainly codified in Title 10, U.S. Code, section 61.).  Percentage ratings in the VASRD represent the average loss in earning capacity resulting from these diseases and injuries.  The ratings also represent the residual effects of these health impairments on civil occupations.  Not all of the general policy provisions of the VASRD apply to the Army.  Section I replaces or modifies paragraph 1–31 of the VASRD, which pertain to VA determination of service-connected disabilities, internal VA procedures or practices, and other paragraphs that do not apply to the Army.  

10.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0% to 100%, rising in increments of 10 percent.  

11.  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 rating of at least 30%.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

12.  Title 38, U.S. Code, sections 1110 and 1131, permit 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was medically retired instead of being discharged due to a physical disability with severance pay.

2.  The applicant sustained an injury that warranted his entry into the PDES.  He underwent an MEB which recommended that he be considered by a PEB.  The PEB found his medical condition prevented him from performing his duties and determined he was physically unfit for further military service.  The PEB recommended separation with entitlement to severance pay.  He agreed with the recommendation.  

3.  Subsequent to his discharge, the VA awarded him a 30% combined rating for various conditions including right dominant brachial plexus neuropraxia, mechanical low back pain, residuals, of fracture jugal maxillary and crushing injury to middle finger, retro patellar pain syndrome, right and left knees, and residuals of fracture, left fifth finger.  

4.  He now believes he should have received full retirement for his back pain because the VA granted him a higher percentage.  However, an award of a different rating by another agency does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and their own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  For example, it is noted that the VA awarded him a disability rating (albeit zero) for a finger injury.  However, there is no evidence to show his finger injury rendered him unable to perform her duties.

5.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  The applicant was properly rated at 20 percent for his right dominant brachial plexus neurapraxia.  There is no evidence to support a higher rating or medical retirement.

6.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or argument that would show an error or injustice occurred in her case.  In view of the circumstances in this case, there is insufficient evidence to grant the 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)                                         AR20100024501



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ABCMR Record of Proceedings (cont)                                         AR20100024501



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