IN THE CASE OF:
BOARD DATE: 22 November 2011
DOCKET NUMBER: AR20110009976
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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired.
2. The applicant states, in effect, that because he has been approved for a Social Security Administration (SSA) disability and has a 60-percent disability rating from the Department of Veterans Affairs (VA), he should have been medically retired.
3. The applicant provides a copy of his service computation for separation.
CONSIDERATION OF EVIDENCE:
1. Except for his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), the applicant's service medical and dental records are believed to be on permanent loan to the VA and are not available for review.
2. With 13 years of prior active and inactive service, the applicant enlisted in the Regular Army on 24 August 2005.
3. An 8 July 2009 PEB found the following:
a. The applicant has degenerative arthritis of the lumbar spine rated at
10-percent disabling. He first injured his back with a lifting strain in 1990, but he was apparently asymptomatic at the time of his enlistment in August 2006. He again started to have back pain that now prevents training for Army physical fitness testing.
b. In 1992, he had a left inguinal hernia repair followed by a prolonged period of post-operative groin pain and he was awarded a VA disability rating for the hernia repair in 1992. He was reported as asymptomatic at the time of his 2006 enlistment.
c. During training following his 2006 enlistment, he was found to have a right inguinal hernia that required surgical intervention in 2007. Again he suffered chronic post-operative pain and had a recurrence of the left inguinal pain. The pain was temporarily relieved by nerve blocks but recurrent symptoms prevent him from wearing individual body armor. He was rated as equivalent to moderate incomplete paralysis at 0-percent disabling.
d. The board also determined eight additional medical conditions evaluated by the medical evaluation board were not unfitting (these conditions were not specified in the PEB Proceedings).
e. The applicant should be medically separated with severance pay with a 10-percent disability rating.
4. On 27 August 2009, the applicant was honorably discharged with disability severance pay, non-combat related.
5. The applicant did not submit and the record does not contain copies of his VA disability rating or his award of an SSA disability.
6. 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 physically 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.
7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant states, in effect, that because he has been approved for an SSA disability and has a 60-percent disability rating from the VA, he should have been medically retired.
2. While both the Army and the VA use the VA Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army. The Army rates only conditions which are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career. The VA, however, may rate any service-connected impairment, thus compensating for a medical condition that reduces or impairs the social or industrial adaptability of the individual concerned. Therefore, it is not unexpected that these two different systems would produce different evaluations.
3. The applicant has not provided and the record does not contain any evidence that the 10-percent disability rating assigned to him was improper or that any of the other conditions for which he is now receiving VA or SSA disability benefits were unfitting for retention in the military service. Absent evidence to the contrary, the Board must presume administrative regularity and no relief is warranted.
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) AR20110009976
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ABCMR Record of Proceedings (cont) AR20110009976
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