BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20110021297 


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 a physical disability retirement.

2.  The applicant states his separation orders clearly state he was injured in a combat zone and he was medically discharged.

3.  The applicant provides:

* the member copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 262-0015, issued by the Installation Management Command, Military Personnel Division, Fort Lewis, WA, dated 18 September 2008
* a self-authored letter to the Defense Finance and Accounting Service (DFAS) regarding taxes withheld from his disability severance pay
* Madigan Army Medical Center (MAMC) Medical Evaluation Board (MEB) Narrative Summary (NARSUM), dictated on 8 July 2008 and typed on
11 July 2008
* MAMC MEB Consultation, dictated on 12 June 2008 and typed on
16 June 2008
* MAMC MEB Consultation, dictated on 4 June 2008 and typed on
7 June 2008
* various other medical records



CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army for 6 years, 9 months, and 23 days in military occupational specialty (MOS) 25Q (Multichannel Transmission Operator/Maintainer)

2.  The applicant served in Iraq from 18 January 2004 to 15 January 2005 and from 22 November 2005 to 16 October 2006.

3.  An MEB NARSUM shows the applicant broke a bone in his foot while running in October 2005.  The foot caused him problems from that point in time.  Eventually his commander referred him for a fitness evaluation.  Medical authorities concluded he failed to meet Army retention standards and recommended his referral to a Physical Evaluation Board (PEB).

4.  On 12 August 2008, a PEB convened.  The board considered right foot pain for sesamoiditis, rated analogously to metatarsalgia (Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Codes 5299 and 5279).  He was determined to be unfit due to limitations on his ability to run or endure prolonged standing.  He was rated at 10% disabled.  The PEB clearly states his disability was not the direct result of armed conflict and not a result of a combat-related injury.

5.  The applicant's discharge orders state, in additional instructions:

* Disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104:  NO (emphasis added)
* Disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (National Defense Authorization Act 2008, section 1646):  NO (emphasis added)

6.  The applicant was honorably discharged on 22 November 2008 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability with severance pay, non-combat related.

7.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The 
U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in 
chapter 61 and in accordance with Department of Defense Directive 1332.18 (Separation of Retirement for Physical Disability) and Army Regulation 635-40.

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board (MMRB)
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages: the MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

8.  Army Regulation 635-40 establishes the PDES.  It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

9.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, including officer procurement programs, and retention and separation, including retirement.

10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30%.

11.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at least 30%.

12.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  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 different results for disability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability up or down based upon that agency's examinations and findings. 

13.  The VASRD is used by the VA as part of the process of adjudicating disability claims.  It is a guide which assigns codes (VASRD Codes) for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.  The VA uses the VASRD to rate service-connected disability of veterans for loss of civilian employability.  The VASRD is also used by the Army to rate the service-connected impairment of active duty Soldiers.  Unlike the VA, the Army must first determine whether a Soldier is fit to reasonably perform the duties of his or her office, grade, rank, or rating.  As a result of provisions in the National Defense Authorization Act for 2008, the Army is required to utilize the VASRD to evaluate injured Soldiers.  VASRD Code 5299 refers to a condition of the skeletal system; VASRD Code 5279 describes foot pain analogous to metatarsalgia.  The only disability percentage for VASRD Code 5279 is 10%.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants his discharge changed to a medical retirement.

2.  The applicant broke a bone in his right foot in October 2005 while he was running.  He was treated, but kept experiencing pain and he was unable to perform his job.  He was referred to the PDES for a fitness evaluation.

3.  A PEB found him unfit for a broken foot under VASRD Code 5279 with a disability rating of 10%.  According to the VASRD this was the correct rating to be awarded.  He was discharged with disability severance pay.  Contrary to his assertion, his discharge order clearly states his disability did not occur in a combat zone, nor was it combat-related.

4.  The applicant was properly discharged; he is not entitled to a physical disability retirement.

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)                                         AR20110021297



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ABCMR Record of Proceedings (cont)                                         AR20110021297



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