IN THE CASE OF:	

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110002515 


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 he was medically retired.

2.  The applicant states that at the time of his separation from the service a full, complete evaluation of his injuries was not investigated due in part to his overwhelming lower back pain and constant intake of medication.  Once separated, time, physical therapy, and magnetic resonance imaging scanning revealed and documented the other injuries to his spine.  In the last year of his service, he felt it was impossible to properly lead and contribute to the Army.  He felt he'd become a liability instead of an asset.  He states he was under-evaluated at the time of his separation and should receive a medical retirement in lieu of a medical separation [disability with severance pay].

3.  The applicant provides a copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); Army Achievement Medal orders; DA Form 3595 (Record Fire Scorecard); Department of Veterans Affairs (VA) Rating Decision, dated 19 March 2010; VA letter, dated 22 March 2010; and DA Forms 3349 (Physical Profile), dated 20 August 1996, 18 December 1996, and 7 October 1998.

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.  On 28 February 1986, the applicant enlisted in the Regular Army.  He completed training, to include basic airborne training, and was awarded military occupational specialty (MOS) 16R (Vulcan Crewmember).  He later reclassified into MOS 35H (Precision Measuring Equipment Specialist).

3.  The applicant served in a series of assignments and was promoted to sergeant first class/pay grade E-7 on 1 September 1997.

4.  Physical profiles show he suffered from upper and lower back pain.  He was awarded permanent limitations to his duties.

5.  A physical evaluation board (PEB) that convened on 3 May 1999 determined the applicant was physically unfit and recommended separation with severance pay.  Based on the established VA Schedule for Rating Disabilities codes, the PEB recommended a 10-percent disability under VA Code 5295 for "chronic low back pain, symptoms present for several years, progressive, finally resulting in permanent profile and referral by MOS Medical Retention Board as being unable to satisfactorily meet the demands of his position, confirmed by commander.  There is at times a radicular pain into the foot, an inconstant finding.  There is herniation of disc on left at L4-5 and L5-S1, and a congenital spinal stenosis (existed prior to service), which may be contributing to the pain syndrome to an unknown degree."

6.  On 4 May 1999, the applicant concurred with the PEB findings and recommendations and waived a formal hearing.

7.  On 28 June 1999, he was honorably discharged due to disability with severance pay.  He completed 13 years, 4 months, and 1 day of net active service.

8.  The VA Rating Decision, dated 19 March 2010, shows his overall or combined evaluation as 60 percent effective 12 October 2009, 100 percent effective 10 January 2010, and 60 percent effective 1 April 2010.  The rating decision was based on the following five reasons:

* service connection for degenerative disc disease, cervical spine (claimed as upper back condition) – service connection was granted effective12 October 2009 and an evaluation of 10 percent was assigned
* service connection for right patellofemoral syndrome (claimed as knee condition) – service connection was granted effective 12 October 2009 and an evaluation of 10 percent was assigned
* service connection for left patellofemoral syndrome (claimed as knee condition) – service connection was granted effective 12 October 2009 with a disability rating of 10 percent
* service connection for thoracic spondylosis (claimed as mid-back disorder) – the VA combined this condition with his service connected lumbar disorder, currently 40-percent disabling effective 12 October 2009
* evaluation of thoracolumbar/sacral spine, spinal stenosis and potential herniated nucleus pulposus with spondylosis currently evaluated as 
40-percent disabling – continuation of the 40-percent disabling evaluation

9.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30-percent disabling.  It further provides in section 1201 for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

10.  Title 38, U.S. Code, sections 1110 and 1131, 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 medically unfitting 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 records should be corrected to show he was medically retired.  He states that at the time of his separation from the service a full, complete evaluation of his injuries was not investigated due in part to his overwhelming lower back pain and constant intake of medication.  He contends he was under-evaluated at the time of his separation and should receive a medical retirement in lieu of disability with severance pay.

2.  The available evidence shows the applicant was medically disabled and evaluated by a PEB.  He received a 10-percent disability rating and severance pay for chronic low back pain.  He concurred with that assessment.

3.  The available documentary evidence provided by the applicant shows the VA reevaluated his medical conditions and granted a 60-percent combined disability rating for the applicant's five medical conditions effective 12 October 2009, ten years after he separated from active duty.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability and/or social functioning.  Furthermore, 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 adding rated conditions.  

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20100014685



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ABCMR Record of Proceedings (cont)                                         AR20110002515



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