BOARD DATE:	  18 August 2011

		DOCKET NUMBER:  AR20110000232 


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, his Army disability retirement rating be increased from 30 percent (%) to 70% based on the increase in his disability rating by the Department of Veterans Affairs (VA).

2.  The applicant states that his Defense Finance and Accounting Service (DFAS) record shows him listed as a Warrant Officer but he is drawing retired pay as an enlisted Soldier with only 13 years and a 30% disability rating.  He contends his record should show he retired as a Warrant Officer with a 70% disability rating percentage.  He was told he would receive more money if he took the VA disability over the retirement pay and he never took a payout from the service.  Further, he has not received the $908.00 of additional pay that is showing up on his DFAS retiree account statement.

3.  The applicant provides:

* A DA Form 199 (Physical Evaluation Board (PEB), dated 12 February 1997
* A memorandum from the U.S. Army Physical Evaluation Board, Fort Sam Houston, TX, subject:  Retention on the Temporary Disability Retired List (TDRL), dated 26 February 1997
* A DA Form 199, dated 13 January 1998
* His Retirement Certificate, dated 16 March 1999
* A VA service-connected disability rating letter, dated 27 June 2005


* A VA Rating Decision, dated 29 October 2007
* A VA service-connected disability rating letter, dated 8 February 2010

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 enlisted in the Regular Army on 13 January 1981.  Having completed 12 years, 3 months, and 3 days of creditable active service, he attained the rank/grade of staff sergeant (SSG)/E-6.  On 15 April 1993, he was discharged for the purpose of accepting an appointment as a Warrant Officer One in the U.S. Army Reserve (USAR) with concurrent call to active duty on 16 April 1993.

3.  On 16 August 1994, a PEB found the member physically unfit.  The board recommended a combined rating of 30% and directed his placement on the TDRL with reexamination during August 1995.

4.  On 24 October 1994, he was honorably retired after completing 1 year, 
6 months, and 9 days of active service this period with 12 years, 3 months, and
3 days of total prior active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period confirms he was retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), by reason of disability, temporary.  Item 4a (Grade, Rate, or Rank) and 4b (Pay Grade) shows he was retired in the rank/grade of WO1/W-1.

5.  On 25 February 1999, a PEB at Fort Sam Houston, TX reviewed the applicant’s recent periodic medical examination and record and recommended his permanent disability retirement due to permanent disability.  The PEB proceedings show his combined disability rating percentage remained at 30%.


6.  On 3 March 1999, the applicant concurred with the findings and recommendations of the PEB and waived his right to a formal hearing of his case.

7.  Orders Number D48-1, issued by the U.S. Army Physical Disability Agency (USAPDA), directed the applicant's removal from the TDRL, effective 15 March 1999, and permanently retired him in his current grade of rank of WO1 on
16 March 1999.  This order shows he received a 30% disability rating.  

8.  The applicant provides several VA disability ratings which show he has an existing service-connected disability.  His disability was rated at 70% for Bipolar Disorder, effective 7 January 1997.  After reevaluation, his disability increased to 100% for Schizophrenia (previously diagnosed as Bipolar), effective 26 July 2007.

9.  The applicant provides no evidence in reference to the $908.00 additional pay he contends is listed on his account, but never received.  

10.  His DFAS pay record shows he currently receives $3,157.00 per month from the VA for his service-connected disability and the estimated retirement pay for a WO1 with 13 years of time in service is $908.00 per month.

11.  Until 2004, a retiree receiving retired pay who was also eligible to receive disability compensation/pension from the VA was barred from receiving concurrent payments of both retired pay and the VA benefit, unless the member elected to waive that portion of retired pay that is equal to the amount of the VA benefit awarded.  Retired pay is a statutory right and, as such, cannot be waived except as authorized by law.  Title 38, U.S. Code, section 5305 authorizes a member to waive entitlement to retired pay and permits a member to receive compensation or pension from the VA.

12.  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 physically fit 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to reflect he was retired at the pay grade of WO1 with a disability rating of 70%.

2.  The evidence of record confirms he received a 30% disability rating and he was placed on the TDRL on 25 October 1994 at the rank/grade of WO1/W-1.

3.  On 16 March 1999, he was permanently retired at the rank/grade of WO1/W-1 due to his disability and his disability rating remained 30%.  The available evidence shows the VA reevaluated his medical conditions in June 2005 and initially rated his disability at 70%.  The rating was later increased to 100% in October 2007.  

4.  An award of a higher VA rating does not change the disability rating previously determined by the USAPDA, nor does it authorize the applicant to have his disability retirement pay recalculated at the higher rate.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings or finding other conditions to be service connected.  

5.  It appears the applicant waived his monthly retirement pay of $908.00 in order to receive VA compensation of $3,157.00.  Lacking evidence to the contrary, there is no apparent error with his pay account.

6.  In view of the forgoing, there is no basis for granting his request.

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)                                         AR20110000232



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ABCMR Record of Proceedings (cont)                                         AR20110000232



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