BOARD DATE:	  23 August 2011

		DOCKET NUMBER:  AR20110003160 


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 that his discharge by reason of permanent physical disability with severance pay be voided and that he be retired due to physical disability with at least a 30% disability rating. 

2.  The applicant states that he was told during a Department of Veterans Affairs (VA) hearing on 20 May 2010 that he should have been medically retired instead of being discharged. 

3.  The applicant provides copies of documents from his VA treatment records.

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 in Albuquerque, New Mexico on 20 March 1986 for a period of 4 years and training as a track vehicle repairer.  He completed basic training at Fort Jackson, South Carolina and advanced individual training at Aberdeen Proving Ground, Maryland before being transferred to Fort Benning, Georgia on 18 November 1986 for his first and only duty assignment.

3.  In March 1988, he was involved in a motor vehicle accident and suffered a fractured subluxation of C6 on C7 with neurologic changes in the right upper extremity.

4.  On 27 September 1989, a Medical Evaluation Board (MEB) conducted at Fort Benning evaluated the applicant’s condition as being:

* Low back pain and sciatica, right secondary to HNP of L4-5
* Subluxation C6-7, old, with posterior cervical fusion

5.  The MEB recommended that the applicant be referred to a Physical Evaluation Board (PEB).  The applicant indicated that he did not want to continue on active duty and concurred with the findings and recommendations of the MEB.

6.  On 16 October 1989, a PEB convened at Fort Gordon, Georgia and found that he was unfit and recommended that he be discharged with severance pay and a 20% disability rating.

7.  The applicant did not concur with the PEB findings and recommendations and demanded a formal hearing and personal appearance with counsel.

8.  A formal PEB was conducted at Fort Gordon with the applicant present represented by counsel.  After considering the applicant’s medical records, personnel records, and testimony, the PEB determined that his condition had not stabilized to the point that a permanent disability rating could be established and recommended that he be placed on the Temporary Disability Retired List (TDRL) with a 40% disability rating and periodic reexaminations.  On 3 November 1984 the applicant concurred with the PEB findings and recommendations.

9.  On 12 November 1989, the applicant was honorably retired in pay grade E-4 by reason of Physical Disability – Temporary.  He had served 3 years, 8 months, and 22 days of active service.



10.  The applicant underwent yearly reexaminations.  On 15 August 1993, a PEB convened at Fort Sam Houston, Texas and determined the applicant’s condition had become stable and recommended that he be removed from the TDRL and discharged with a 10% disability rating and entitlement to severance pay.

11.  The applicant did not concur with the findings and recommendations of the PEB and demanded a formal hearing with a personal appearance and his own counsel. 

12.  On 19 September 1993, a formal PEB convened with the applicant represented by a service officer of a service organization.  The PEB, after reevaluating all of the available medical evidence and sworn testimony by the applicant found the applicant was physically unfit and recommended that the applicant be discharged with severance pay and a 20% disability rating.

13.  The applicant did not concur with the PEB findings and recommendations and on 5 October 1993 his counsel submitted a rebuttal.  The PEB evaluated the rebuttal and determined its findings and recommendations were correct and advised the applicant that his case would be forwarded to the U.S. Army Physical Disability Agency (USAPDA) for final review and processing.  He was also advised that if a change was made by that agency he would be notified. 

14.  On 20 October 1993, the USAPDA approved the findings and recommendations of the PEB.

15.  On 2 March 1994, the applicant was removed from the TDRL and discharged due to a permanent physical disability with a 20% disability rating and entitlement to severance pay.  

16.  The documents provided by the applicant appear to be incomplete and do not provide any insight as to the applicant’s diagnosis or ratings by the VA.

17.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30% disabling.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides, in pertinent part, that when 

a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  That regulation also provides the provisions for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier’s disability ratings.

19.  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 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.

20.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case suggests the applicant’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities (VASRD) and his separation with severance pay was in compliance with laws and regulations in effect at the time.  

2.  The applicant was found unfit for duty and he was assigned a combined disability rating of 20% for his unfitting conditions as they existed at the time of his formal PEB hearing.   Department of the Army disability decisions are based 

on observations and determinations existing at the time of the PEB hearing.  Department of the Army ratings become effective on the date that permanency of the diagnosis is established.
3.  The applicant has not provided sufficient evidence to show he was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB were incorrect.

4.  The fact that the VA, in its discretion, may have awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Army.  

5.  In view of the foregoing, there is an insufficient basis for granting the applicant's 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)                                         AR20110003160



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ABCMR Record of Proceedings (cont)                                         AR20110003160



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