IN THE CASE OF:	  

		BOARD DATE:	    18 October 2011

		DOCKET NUMBER:  AR20110003960 


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 his discharge be changed from an honorable to a medical based on his service in Afghanistan.

2.  He states:

   a.  based on his injuries, he should not have been given an honorable discharge;
        
   b.  his evaluation at Ft. Leonard Wood, MO resulted in him being discharged from the Army National Guard (ARNG); and 
      
   c.  the ARNG should have submitted the results of his evaluation to the Regular Army stating that he was injured on active duty in order for him to be issued a new DD Form 214 (Certificate of Release or Discharge from Active Duty) and the Department of Veterans Affairs (VA) could proceed. 

3.  He provides the following:

* DD Form 214
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 
17 April 2008
* Magnetic Resonance Imaging (MRI) Consultative Report, dated 
12 September 2008
*  Department of Veterans Affairs (VA) Rating Decision, dated 30 November 2009 
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's record shows he enlisted in the Iowa Army National Guard (IAARNG) on 16 June 1993.  He was ordered to active duty as a member of his unit in support of Operation Enduring Freedom on 12 March 2003.  He served in Afghanistan from 23 June 2003 to 4 March 2004.

3.  On 26 March 2004, he was released from active duty and returned to the IAARNG after serving for 1 year and 15 days.  The DD Form 214 he was issued shows in:

* Item 24 (Character of Service) - honorable
* Item 28 (Narrative Reason for Separation) - Completion of Required Active Service

4.  On 17 April 2008, a PEB convened and considered the applicant's condition of:

   a.  chronic low back pain due in part to a back injury in 2003, subsequent
to his deployment to Afghanistan where his condition slowly worsened; and  
      
   b.  chronic right shoulder pain due to injury while in Afghanistan due to
lifting and status post diagnostic arthroscopy that disclosed impingement syndrome;  
      
   c.  the PEB stated that neither his chronic low pain back nor his chronic
right shoulder pains were unfitting at time of his release from active duty and he returned to drilling status; and   

   d.  The PEB found that he was physically unfit due to chronic pain, unable to fulfill his duty as a construction repair mechanic due to shoulder pain, and extensive profile limitations that prohibited all functional activities and recommended a 10-percent (%) disability rating for each condition with a combined disability rating of 20%.  He was recommended for separation with severance pay if he was otherwise qualified.  He concurred with the PEB and waived a formal hearing.

5.  On 21 April 2008, in a memorandum to the Commander, U.S. Army Physical Disability Agency, Washington, DC, the applicant elected to be discharged with entitlements to receive disability severance pay, pursuant to Title 10 U.S. Code, Section 1212.  

6.  Orders Number D136-01, issued by U.S. Army Physical Disability Agency, Washington, DC, dated 15 May 2008, show that on 19 June 2008, he was honorably discharged from the ARNG of the U.S. under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) chapter 4, with disability severance pay.  He was credited with 4 years, 11 months, and 16 days of service.  His disability rating was 20%, and his injuries were incurred in a combat zone or incurred during the performance of duty in combat related operations.  

7.  He submitted a Nuclear Medicine Service, MRI Consultative Report from the St. Louis VA Medical Center, dated 12 September 2008, that states he had a small left paracentral disc protrusion with posterior annular tear at L4-L5 and a marked disc bulge at L5-S1 with small to moderate sized paracentral disc herniation with mild caudal migration.

8.  The VA Rating Decision, dated 30 April 2009, shows he received a disability rating of 20% for lumbar spine degenerative disc disease with a history of herniated nucleus pulpous and a combined rating of 40% for an undisclosed illness or injury, effective 23 June 2009.  He did not submit his initial VA Rating Decision.  

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 635-40 also provides that a Soldier may be separated with severance pay if the Soldier's disability is rated at less than 30 percent, if the Soldier has less than 20 years of service as defined in Title 10, U.S. Code, section 1208, and if the Soldier's disability occurred in the line of duty and is the proximate result of performing active duty.

11.  Army Regulation 40-501 (Standards of Medical Fitness) 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%.

12.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

13.  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 rated at less than 30%.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

14.  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 evidence of record shows his back and shoulder pain occurred subsequent to his deployment to Afghanistan in 2003.  Evidence of record further shows he aggravated those injuries while serving on active duty in 2003, while lifting and carrying objects during his deployment to Afghanistan.  The evidence also shows that neither of his injuries was unfitting and he continued to drill with the IAARNG until he was discharged in 2008.     
2.  On 17 April 2008, the PEB found him unfit for chronic low back pain and chronic shoulder pain.  The PEB reviewed all the available and appropriate evidence.  There were no other unfitting conditions found.  The PEB recommended separation with entitlement to severance pay with a 20% disability rating.  He agreed with the PEB's recommendation.

3.  On 23 July 2009, the VA awarded the applicant a 40% combined rating for lumbar pain and an undisclosed injury.

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.  There is no evidence that he should have been awarded a higher rating.  Since this rating was less than 30%, by law he was only entitled to severance pay.

5.  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.

6.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency’s examinations and findings.

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)                                         AR20110003960



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1