IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20110001112 


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 10-percent disability rating; however, the Department of Veterans Affairs (VA) rated him at 70 percent immediately after discharge.  The medical condition of "back herniation" caused during his military service should have been rated greater than 30 percent and his other medical conditions should have been taken into account.  He was processed out the Army quickly and, in effect, he was not counseled properly.  He believes it is only appropriate that he should be entitled to a medical retirement during this time of war so that he can provide for his family, especially now that his health is deteriorating.

3.  The applicant provides his VA rating decision and DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 20 May 1992 and held military occupational specialty 52D (Power Generation Equipment Repairer).  He was assigned to Fort Bragg, NC.

3.  On 20 August 1993, he complained of low back pain.  He stated he injured his back in June 1992 after lifting a heavy object.  The pain worsened by doing an obstacle course the next day when he fell onto his back and buttocks.  He subsequently had multiple evaluations and treatments by physical therapy and clinic physicians, but he did not respond to care.  His narrative summary noted the following:

	a.  A lateral bending of 25 degrees bilaterally.  He could extend to 20 degrees and on forward bending he was able to get his fingertips 8 inches from the floor.  Tenderness at the lumbar without muscle spasm was noted.  His laboratory studies revealed no abnormalities.  A bone scan revealed a small focus of slightly increased uptake of left pedicle of T12.  Radiographs of the spine revealed no abnormalities.  Magnetic resonance imaging (MRI) revealed a central disc bulge at the L5-S1 with a mild mass effect on the nerve root.

	b.  He continued to experience low back pain and he was placed on limited activity.  Despite his physical profile, rest, physical therapy for pain modalities, and reconditioning, his symptoms persisted.  Although the MRI demonstrated findings consistent with a herniated nucleus pulposus at the L5-S1, physical findings did not correlate with this.  Additionally, he had no tension signs on examination.  There were some degenerative changes of the L5-S1 nerve root; however, it did not correlate with the asymmetric patellar reflexes.  Nevertheless, due to chronic symptoms and lack of response to conservative care, it was unlikely any improvement would be forthcoming.

	c.  His final diagnosis was that of an intervertebral disc syndrome manifested by chronic low back pain.  This condition did not meet retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  Accordingly, he was referred to the Physical Disability Evaluation System (PDES).

4.  On 22 October 1993, a medical evaluation board (MEB) convened at Fort Bragg, NC, and after consideration of clinical records, laboratory findings, 

and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of intervertebral disc syndrome manifested by chronic low back pain.  The MEB recommended his referral to a physical evaluation board (PEB).  He agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

5.  On 24 November 1993, 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 intervertebral disc syndrome manifested by chronic low back pain.  He was rated under the VA Schedule for Rating Disabilities (VASRD), assigned codes 5299 and 5295, and granted a 10-percent disability rating.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.

6.  On 10 December 1993, the applicant was counseled by a PEB Liaison Officer regarding his medical condition, the findings of the MEB, the PEB process, and his rights under the law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

7.  He was honorably discharged on 21 January 1994 by reason of disability with entitlement to severance pay under the provisions of paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The DD Form 214 he was issued shows he completed 1 year, 8 months, and 2 days of active service.

8.  He submitted a VA rating decision, dated 24 August 2009, which shows he was awarded service-connected disability compensation for various conditions effective as indicated below:

* degenerative disc disease of the cervical spine, 10 percent, 22 January 1994
* osteoarthritis of the right knee, 10 percent, 27 October 2004
* osteoarthritis of the left knee, 10 percent, 27 October 2004

The VA rating decision also stated his combined rating of 20 percent from January 1994 was increased to 50 percent effective 19 June 2009, 60 percent effective October 2006, and 70 percent effective March 2009.

9.  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 states 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.  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 percent to 100 percent, 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 percent.  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 percent.

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.  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 physical disability with severance pay.

2.  The applicant sustained a back injury that warranted his entry into the PDES.  There is no evidence to show that any problem with his knees rendered him unfit 

to perform his duties.  He underwent an MEB which recommended his referral to a PEB.  The PEB found his back 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 with a 10 percent disability rating.  He agreed with the PEB's recommendation.

3.  Subsequent to his discharge and effective 22 January 1994, the VA awarded him a 10-percent rating for his back condition, the same rating the Army gave him.  It also rated each of his knees at 10-percent disabled.  Later, the VA awarded him a combined rating for various conditions including degenerative disc disease of the cervical spine, osteoarthritis of the right knee, and osteoarthritis of the left knee.

4.  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 10 percent for his low back pain.  There is no evidence to support a higher rating for his back or for any other medical condition.

5.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated him at 10 percent for his low back condition.  There is no evidence that he should have been awarded a higher rating.  Since this rating was less than 30 percent, by law he was only entitled to severance pay.

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 an argument that would show an error or injustice occurred in his 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 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)                                         AR20110001112



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ABCMR Record of Proceedings (cont)                                         AR20110001112



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