IN THE CASE OF:	  

		BOARD DATE:	  2 February 2012

		DOCKET NUMBER:  AR20110012331 


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 item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active duty) to show his 10-percent service-connected disability rating.

2.  The applicant states:

	a.  He was granted a 10-percent service-connected disability rating based on an injury inflicted during training, not prior to his service.

	b.  His DD Form 214 does not list his 10-percent service-connected disability rating.

3.  The applicant provides copies of:

* Department of Veterans Affairs (VA) Form 21-0820 (Report of General Information)
* VA letters, dated 5 and 17 April 2006

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 military records show he was ordered to active duty in support of Operation Iraqi Freedom as a member of the Army National Guard (ARNG) on 21 November 2004.  He held military occupational specialty 92G (Food Service Specialist).

3.  His record includes a DA Form 3349 (Physical Profile Record), dated 1 March 2005, which shows that based on his diagnosis of "type III dextroscoliosis," he was assigned a rating of "3" in the physical capacity factor "U" of his physical profile serial (PULHES).   It also shows he was issued a permanent profile and required referral to a medical evaluation board (MEB)/physical evaluation board (PEB).

4.  The PULHES factors represent the following portions of an individual's anatomy:

* P = physical capacity or stamina
* U = upper extremities
* L = lower extremities
* H = hearing and ears
* E = eyes
* S = psychiatric

5.  A DA Form 3947 (MEB Proceedings), dated 1 April 2005, shows the MEB determined the applicant's dextroscoliosis of the upper lumbar and low thoracic spine with a 16:1 degree Cobb angle was:

* incurred while entitled to basic pay
* medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-39g
* permanently aggravated by service

6.  The MEB recommended the applicant's case be evaluated by a PEB and the applicant agreed with the MEB findings and recommendation.

7.  On 19 April 2005, a PEB convened at Fort Sam Houston, Texas, to consider the applicant's case.  The PEB evaluated the applicant's low back pain due to scoliosis without neurologic abnormality and thoracolumbar range of motion limited by pain.

	a.  Based on a review of the objective medical evidence of record, the applicant's medical and physical impairment prevented reasonable performance of duties required by his grade and military specialty.

	b.  There was compelling evidence to support his current condition existed prior to military service and was not permanently aggravated beyond natural progression by such service.  Despite the DA Form 3947 entry, the applicant's scoliosis is developmental, symptomatic through natural progression with military training.

	c.  The applicant was physically unfit for further service with a 0 percent disability rating and the PEB recommended his separation from the service without disability benefits.

8.  On 28 April 2005, the applicant concurred with the PEB findings and waived a formal hearing of his case.

9.  On 4 May 2005, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB findings on behalf of the Secretary of the Army.

10.  On 9 May 2005, Headquarters, Joint Readiness Training Center and Fort Polk, Fort Polk, Louisiana, issued Orders 129-0336 which directed the applicant's discharge from active duty on 16 May 2005.

11.  On 16 May 2005, the applicant was honorably discharged from active duty.  He completed 5 months and 16 days of active Federal service.  The DD Form 214 issued at that time shows:

	a.  in item 25 (Separation Authority) that he was discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(4), and

	b.  in item 28 (Narrative Reason for Separation) that he was discharged due to "disability, existed prior to service, PEB."

12.  The applicant provides VA letters, dated 5 and 17 April 2006, which show his 0-percent disability rating based on back strain with mechanical pain, dextroscoliosis of the upper lumbar and low thoracic spine, was increased to 10 percent.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 or her office, grade, rank, or rating.

	a.  Paragraph 3-3 provides guidance for conditions that existed before active military service.  According to accepted medical principles, certain abnormalities and residual conditions exist that when discovered lead to the conclusion that they must have existed or have started before the individual entered military service.

	b.  Paragraph 4-19e provides common criteria for PEB decisions that involve conditions which existed prior to entry in the service.  Soldiers who are unfit by reason of physical disability neither incurred nor aggravated during any period of service while entitled to basic pay, or as the proximate result of performing active duty or inactive duty training but which effects duty performance, will be separated for physical disability without entitlement to benefits.

	c.  Paragraph 4-24b(4) provides for separation for physical disability without severance pay upon final decision of the USAPDA.

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains item-by-item instructions for preparation of the DD Form 214.  The entry for item 28 is based on the regulatory or other authority for separation.

15.  Title 38, U.S. Code, sections 310 and 331, permits 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 error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.

16.  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 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.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a military career, while the VA may rate any service-connected impairment in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show the medical condition for which he was discharged was not an EPTS condition and was in fact incurred during military service based on his 10-percent service-connected disability rating granted by the VA.  There is insufficient evidence to support this claim.

2.  The evidence of record shows the applicant's chronic back pain due to "scoliosis without neurologic abnormality and thoraculumbar range of motion limited by pain" was not permanently aggravated beyond natural progression by service.  His scoliosis was developmental, symptomatic through natural progression with military service.  He was properly processed through the PDES in accordance with the applicable laws and regulations.  His case was properly considered by an MEB and PEB and he concurred with the findings of both boards.

3.  The applicant's assigned disability rating was based on a comprehensive medical evaluation of his disabling medical conditions by competent medical authorities through the PDES process.  A subsequent service-connected disability rating by the VA would not call into question the validity of the disability rating assigned during the PEB process and there is absolutely no evidence suggesting the PEB findings and recommendations were arbitrary or capricious.

4.  The evidence also confirms the applicant is properly receiving treatment from the VA, which is the appropriate agency to render long-term care and disability evaluation for service-connected medical conditions.  The VA can evaluate him throughout his lifetime, adjusting the disability rating percentage.

5.  Finally, the DD Form 214 is a summary of a Soldier's active duty service for the period it covers.  There are no provisions that allow for documenting an individual's disability rating granted by another agency subsequent to his military service on the DD Form 214.  Accordingly, there is an insufficient evidentiary basis upon which to grant the requested relief in this case.


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)                                         AR20110012331



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ABCMR Record of Proceedings (cont)                                         AR20110012331



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