IN THE CASE OF:	  

		BOARD DATE:	    12 April 2012

		DOCKET NUMBER:  AR20110019864 


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 records to show he was retired due to a physical disability.

2.  The applicant states at the time of his discharge, he was offered to undergo Medical Evaluation Board (MEB) proceedings or to go through the Department of Veterans Affairs (VA) for benefits, but not both.  He contends he was found 100 percent (%) unemployable by the VA for the same injuries that led to his discharge.

3.  The applicant provides no additional evidence.

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 29 December 1989 and upon completion of initial entry training he was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).

3.  On 11 April 2001, he was examined by an MEB and he was diagnosed with chronic low back pain with sciatica due to degenerative lumbar disk disease.  The MEB concluded he did not meet medical retention criteria and referred him to a Physical Evaluation Board (PEB).

4.  On 30 May 2001, an informal PEB found the applicant unfit for continuation on active duty due to chronic low back pain due to degenerative lumbar disk disease without neurologic abnormality or documented chronic paravertebral muscle spams on repeated examinations, with characteristic pain in motion.  He was recommended for separation under VA Schedule for Rating Disabilities (VASRD) codes 5299 and 5295 with a 10% disability rating with severance pay.  He concurred with the PEB's findings and waived a formal hearing.  Accordingly, on 4 August 2001, he was discharged under the provisions of Army Regulation
635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to a disability with entitlement to severance pay.

5.  The applicant contends that he was found 100% unemployable by the VA for the same injuries that led to his discharge; however, he failed to provide this Board with his VA Rating Decision or any other corroborating documentation.

6.  Army Regulation 635-40, Appendix B, provides guidance for the Army's application of the VASRD.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

7.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has impairment rated at less than 30% disabling.  It further provides, at section 1201, for the physical disability retirement of a member who has impairment rated at least 30% disabling.

8.  Title 38, U.S. Code, sections 310 and 331, permit 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 unfit 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.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the Physical Disability Evaluation System.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been retired due to a physical disability.

2.  The available evidence shows he was medically unfit and evaluated by a PEB.  He received a 10% disability rating with severance pay for chronic low back pain.

3.  He contends that he was granted a 100% disability rating by the VA.  However, he failed to provide evidence supporting his contention.

4.  Regardless of the percentage of disability awarded by the VA, an award of a VA rating does not establish entitlement to medical retirement.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability and/or social functioning.  Furthermore, 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 must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

5.  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)                                         AR20110019864



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ABCMR Record of Proceedings (cont)                                         AR20110019864



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