IN THE CASE OF:	  

		BOARD DATE:	  2 February 2012

		DOCKET NUMBER:  AR20110016390 


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, in effect, reconsideration of his earlier request that his discharge with severance pay be changed to a medical retirement.

2.  The applicant states he disagrees with the Boards findings.  The Board stated in the "Discussion and Conclusion" portion of the Record of Proceedings that the evidence of record shows he [the applicant] underwent a Medical Duty Review Board in February 2001 and he was found fully fit and deployable at the time."  This is incorrect.  The letter, dated 8 July 2001, signed by colonel TW clearly states "Reclassify/Non deploy."  On 8 March 2003, Major General RD overruled the Medical Review Board.  In addition, the specialist who processed him out never explained the Army National Guard (ARNG) early Reserve Retirement Eligibility Program to him nor the 8-year program.  

3.  The applicant provides:

* Memorandum, dated 8 march 2003, Subject: MOS (Military Occupational Specialty) Medical Retention Board (MMRB) Approval
* Various civilian and/or service medical records throughout his military service

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100023569 on 14 June 2011.

2.  The applicant submitted various civilian and/or service medical records throughout his military service – most of which were previously considered – and a new argument which was not previously considered by the ABCMR.  Therefore, they are considered new evidence and, as such, warrant consideration by the Board.

3.  The applicant was born on 20 April 1969.  He initially enlisted in the U.S. Army Reserve (USAR) on 15 December 1986 and held MOS 31C (Single Channel Radio Operator/Maintainer).  

4.  He enlisted in the Regular Army (RA) on 30 September 1988.  He also reenlisted on 14 May 1992.  He served in Southwest Asia from 27 June 1992 to 13 November 1992 and from 12 April 1994 to 28 August 1994.  He was honorably discharged from active duty on 10 February 1996 with entitlement to full separation pay.

5.  Prior to his discharge from the RA, he enlisted in the Iowa ARNG (IARNG) for 3 years on 5 December 1995 and he was assigned to the 234th Signal Battalion, Cedar Rapids, IA.  He followed that enlistment with a 3-year extension on 5 December 1998 and a 6-year extension on 2 February 2002.  

6.  On 31 July 1997, he was seen at the Physicians' Clinic of Iowa.  The civilian doctor indicated the applicant had suffered a traumatic anterior shoulder dislocation playing football at age 17.  He sustained multiple recurrent dislocations and subsequently underwent a surgical procedure in 1995.  He had an inferior capsular shift according to his medical records and he subsequently did well until he tripped over a child and re-dislocated his shoulder.  He was in therapy on multiple times and he was able to relocate his shoulder by himself.

7.  On 5 November 2000, he underwent a medical examination that noted a shoulder impingement and limited range of motion (ROM).  He indicated that he previously had shoulder surgery in 1995 and 1997.  He was issued a permanent physical profile that listed his medical condition as left shoulder pain with decreased ROM after surgical repair of dislocation.

8.  On 3 February 2001, he underwent a Medical Duty Review Board.  The medical officer and State Surgeon indicated the applicant did not meet MOS physical category but he had no current orthopedic evaluation to properly assess the status of his shoulder.  Both officials indicated he was fully fit and recommended reclassification.   
9.  On 8 July 2001, by memorandum, the Office of the State Adjutant General, IAARNG, notified his commander that his final determination was "Reclassify/Non-Deploy."

10.  On 6 March 2003, he was ordered to active duty in support of Operation Enduring or Iraqi Freedom.  He would later serve in Kuwait/Iraq from 13 June 2003 to 15 August 2003. 

11.  On 7 March 2003, he was seen by a military doctor to update his physical profile.  The military doctor indicated there was no change in the applicant's condition.  He remained fully fit and he was cleared for deployments.

12.  Also on 7 March 2003, he underwent a Medical Duty Review Board (MDRB) validation.  A review of his records indicated his current medical status was consistent with the current profile and he met retention standards of Army Regulation (AR) 50-501 (Standards of Medical Fitness).  The IAARNG Director of Personnel and Administration reviewed the MDRB for worldwide deployment in a field environment in his MOS of 31R (Multi-Channel Transmission Systems Operator) and recommended the MDRB be accepted in lieu of the MMRB.

13.  On 8 March 2003, the State Adjutant General approved the validation of the MDRB results for acceptance in lieu of the MMRB.  He ordered the applicant retained in his primary MOS.

14.  On 29 March 2004, he complained of shoulder pain and instability with a history of left shoulder reconstruction.  He was evaluated on an outpatient basis. His narrative summary (NARSUM) noted his ROM was forward flexion: 180 degrees right and 180 degrees left; abduction was 180 degrees right and 180 degrees left; internal rotation was 10 degrees right and 54 degrees left; external rotation 90 degrees right and 90 degrees left.  There was positive apprehension sign on the left shoulder.  There was negative Neer's and negative Hawkins signs bilaterally.  There was positive anterior laxity on load and shift test of the left shoulder and a positive O'Brien test to the left shoulder.  

15.  The NARSUM further stated that he had reached maximum medical benefits. His signs were not expected to resolve within the next year.  He failed to meet retention standards of AR 40-501 and he was recommended for entry into the Physical Disability Evaluation System (PDES).

16.  On 19 April 2004, a medical evaluation board (MEB) convened at Fort Riley, KS, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of chronic left shoulder pain and instability with a history of reconstructive surgery of the left shoulder.  The MEB recommended his referral to a physical evaluation board (PEB).  He agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

17.  On 16 May 2004, an informal PEB convened at Fort Lewis, WA.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to chronic left shoulder pain and instability predating mobilization.  Full range of motion without documented dislocations rated as analogous to degenerative osteoarthritis without loss of joint motion.  The PEB noted that his disability existed prior to mobilization and was neither the proximate result of military service nor permanently aggravated by service but compensable in accordance with Title 10, U.S. Code (USC), section 1207a (8-year rule).  He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), assigned codes 5099 and 5233, and granted a zero-percent (0%) disability rating.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.  The PEB also noted/indicated:

	a.  He was rated in accordance with the 8-year rule.  However, because his unfitting conditions were non-duty related, he may be eligible to apply for ARNG Early Retirement Eligibility Program in lieu of separation for disability.

	b.  The PEB strongly encouraged him to consider requesting termination of his disability processing so he could submit an application for this program through the ARNG channels.  

18.  On 7 June 2004, the applicant was counseled regarding his medical condition, the findings of the MEB, the PEB's findings and recommendations and having received a full explanation of the results of the findings and the recommendations, and his rights under the law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

19.  He was honorably discharged from active duty on 30 June 2004 by reason of disability with entitlement to severance pay under the provisions of paragraph    4-24b(3) of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 1 year, 3 months, and 25 days of active service.  He received $45,018.00 in severance pay.

20.  He was also honorably discharged from the ARNG on 30 June 2004.  His National Guard Bureau Form 22 (Report of Separation and Record of Service) show she completed a total of 17 years, 6 months, and 16 days of total service for retired pay.

21.  The VA awarded him service-connected disability compensation at the rate of 10% for his left shoulder instability and 10% for his fistula in ano, both effective 1 July 2004. 

22.  Title 10 USC, section 1207a states members with over 8 years of active service: eligibility for disability retirement for pre-existing conditions (a) in the case of a member described in subsection (b) who would be covered by section 1201, 1202, or 1203 of this title but for the fact that the member's disability is determined to have been incurred before the member became entitled to basic pay in the member's current period of active duty, the disability shall be deemed to have been incurred while the member was entitled to basic pay and shall be so considered for purposes of determining whether the disability was incurred in the line of duty; and (b) a member described in subsection (a) is a member with at least 8 years of active service.

23.  Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%.  Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

24.  Title 38, USC, 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 higher VA rating does not establish 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.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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.

25.  AR 635-40 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 or her office, grade, rank, or rating.

26.  AR 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 physical evaluation board rates all disabilities using the VA Schedule for Rating Disabilities.  Ratings can range from 0 to 100%, rising in increments of 10%.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was medically retired instead of separated for disability and entitlement to severance pay.

2.  The evidence of record shows the applicant suffered a shoulder injury prior to entering military service while playing football.  He served through multiple enlistments or extensions in the USAR, RA, and ARNG.  He reinjured his shoulder many times and underwent surgery, therapy, and/or treatment.  In each case, he was found fit for duty.

3.  He was ultimately ordered to active duty in support of the current operations.  While on active duty, he continued to complain of pain to his shoulder.  He underwent a medical examination that warranted his entry into the PDES.  He underwent an MEB which recommended his referral to a PEB.  The PEB found his shoulder condition prevented him from performing his duties and determined he was physically unfit for further military service.  The PEB recommended separation with entitlement to severance pay.

4.  The PEB alerted him that he was rated in accordance with the 8-year rule.  The 8-year rule essentially states that when a member has at least 8 years of active service and the member's disability is determined to have been incurred before the member became entitled to basic pay in the member's current period of active duty, the disability shall be deemed to have been incurred while the member was entitled to basic pay and shall be so considered for purposes of determining whether the disability was incurred in the line of duty.   

5.  The PEB also alerted him that because his unfitting conditions were non-duty related, he may be eligible to apply for ARNG Early Retirement Eligibility Program in lieu of separation for disability.  The PEB then strongly encouraged him to consider requesting termination of his disability processing so he could submit an application for this program through the ARNG channels.  
6.  He was counseled regarding his medical condition, the findings of the MEB, the PEB's findings and recommendations and having received a full explanation of the results of the findings and the recommendations, and his rights under the law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

7.  Subsequent to his discharge and effective 1 July 2004, the VA awarded him a rating for his shoulder condition.  However, 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.  The applicant was properly rated for his shoulder condition.  There is no evidence to support a higher rating for this or any other medical condition.

8.  An award of a rating by another agency does not establish error by the Army. 
Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) affects the individual's civilian employability.

9.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated him at 0 percent for shoulder condition.  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.

10.  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.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100023569 dated 14 June 2011.



      _______ _   _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)                                         AR20110016390





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ABCMR Record of Proceedings (cont)                                         AR20110016390



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