IN THE CASE OF:
BOARD DATE: 27 October 2011
DOCKET NUMBER: AR20110004972
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 medical disability discharge with severance pay be changed to a medical disability retirement.
2. He states he was awarded a combined disability rating of 80 percent from the Department of Veterans Affairs (VA) for degenerative joint disease (DJD) of the lumbar and cervical regions. Based on his original disability rating by the U.S. Army and his corrected disability rating by the VA, he should have been granted a full medical retirement with all due pay, allowances, and benefits.
3. The applicant provides a VA Rating Decision, dated 3 September 2008.
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 28 February 1995. After completion of training, he served in military occupational specialty 13F (Fire Support Specialist).
3. The facts and circumstances surrounding his medical discharge are not in the available records.
4. His military medical records are not accessible for review. It is believed that these records are on permanent loan to the VA.
5. Orders 294-0039, dated 21 October 1999, show the applicant was assigned to the U.S. Army Transition Center on 4 December 1999. Additional instruction b of these orders state he was authorized disability severance pay in the grade of sergeant/E-5 based on 4 years, 9 months, and 7 days of service as computed under Title 10, U.S. Code, section 1208. He was granted a disability rating of 20 percent.
6. These orders also show his disability was not based on an injury or disease received in the line of duty as a direct result of an armed conflict, instrumentality of war, or incurred during a war. His disability did not result from a combat-related period as defined by law.
7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 4 December 1999 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of physical disability with severance pay. He completed 4 years, 9 months, and 7 days of active military service.
8. The applicant provides a copy of his VA Rating Decision, dated 29 May 2008, which shows the VA awarded him a combined rating of 80 percent based on service-connected disabilities incurred during the Gulf War.
9. Army Regulation 635-40 governs the evaluation of physical fitness for Soldiers who may be unfit to perform their military duties because of physical disability when the unfitness is of such a degree that a Soldier is unable to perform the duties of this office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.
10. 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 rated at least 30 percent.
11. Department of Defense Instruction (DODI) Number 1332.38 (Physical Disability Evaluation) implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability. Enclosure 3, part 7 (Final Disposition), paragraph E3.P7.5.3 (Separation with Disability Severance Pay) provides that separation is directed under Title 10, U.S. Code, section 1203 or 1206, when the member is unfit for a compensable physical disability determined under the standards of this DODI if the member has less than 20 years of service computed under Title 10, U.S. Code, section 1208, and the disability is rated at less than 30 percent, to include 0 percent. This DODI also states there are no provisions under Title 10, U.S. Code, to repay disability severance pay for the purpose of receiving retired pay.
12. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice in the basis for a Soldier's discharge from the Army. Army disability ratings are intended to compensate an individual for interruption of a military career after it has been determined the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions it determines were incurred during military service and subsequently affect the individual's civilian employability. Furthermore, 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. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career while the VA may rate any service-connected impairment including those that are detected after discharge in order to compensate the individual for loss of civilian employability.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should have been granted a full medical disability retirement based on his corrected disability rating awarded by the VA. His contention was carefully considered; however, it is not supported by the evidence of record.
2. The applicants service medical records and his medical evaluation board/physical evaluation board proceedings are not available. In the absence of evidence to the contrary it is presumed that his medical board proceedings and discharge by reason of physical disability with severance pay were processed in accordance with all applicable laws and regulations at the time.
3. The fact the VA in its discretion has awarded the applicant a combined disability rating of 80 percent for DJD of the lumbar and cervical regions in 2008, 9 years after he was discharged, is a prerogative exercised within the policies of that agency. It does not mandate disability retirement or separation from 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.
4. As a result, there is no basis to change his discharge with disability severance pay to a medical disability retirement.
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) AR20110004972
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ABCMR Record of Proceedings (cont) AR20110004972
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