IN THE CASE OF:	  

		BOARD DATE:  1 May 2012

		DOCKET NUMBER:  AR20110012469 


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 due to disability with severance pay be changed to retirement by reason of permanent disability.

2.  The applicant states that because of his mental state at the time he did not understand what was happening when he was seeing his counsel.

3.  The applicant provides three pages explaining his application, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), and copies of his medical 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 on 27 February 1990 for a period of 4 years, training as an infantryman, and a cash enlistment bonus.  He completed his one-station unit training as an infantryman at Fort Benning, Georgia and was transferred to Germany for a 24-month tour.  He remained on active duty through a series of continuous reenlistments, and he served a 1-year tour in Korea and 7 months in Bosnia before being assigned to Fort Riley, Kansas in February 1995.  He was promoted to the pay grade of E-6 on 1 June 1997. 

3.  On 22 September 2003 he appeared before a Medical Evaluation Board (MEB) at Fort Riley to consider his diagnoses of:

* Chronic Migraine Headaches
* Subjective Mild Intermittent Asthma
* Depression (Acceptable)
* Gastroesophageal Reflux Symptoms (Acceptable)
* Hearing Loss with right ear pain

4.  The MEB found that the applicant no longer met the retention standards of Army Regulation 40-501 and recommended that he be referred to a Physical Evaluation Board (PEB).  The applicant indicated that he no longer desired to continue on active duty and he also disagreed with the findings and recommendation of the MEB.  The MEB findings and proceedings were approved on 12 January 2004.

5.  On 16 April 2004 a PEB determined that the applicant’s only unfitting condition was his chronic headaches.  The PEB found him unfit for further servicer and recommended that he be separated with severance pay if eligible and given a 0% disability rating.  

6.  The applicant did not concur with the findings and recommendations of the PEB.  He requested a formal hearing and appointment of counsel to represent him.  A formal hearing was scheduled for 22 June 2004; however, on 21 June 2004, the applicant withdrew his demand for a formal hearing and indicated that after consulting with counsel he did not contest the findings and recommendation of the PEB.

7.  On 4 October 2004 he was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24B(3), due to disability, severance pay.  He had served 14 years, 7 months, and 8 days of active service and was paid $66,319.20 in severance pay benefits.

8.  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.

9.  Army Regulation 635-40 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.  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.  

10.  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 that the applicant’s disability was properly evaluated in accordance with the applicable laws and regulations with no violations of any of the applicant’s rights 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 0% for his unfitting condition as it existed at the time of his informal PEB hearing.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing.  The Department of the Army ratings become effective the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show that he was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB was incorrect.

4.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20110012469





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ABCMR Record of Proceedings (cont)                                         AR20110012469



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