IN THE CASE OF:	  

		BOARD DATE:	  26 July 2012

		DOCKET NUMBER:  AR20110023053 


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 be voided and that he be retired by reason of permanent disability with a 40% disability rating.

2.  The applicant states, in effect, that he was discharged from active duty with a zero percent disability rating because he was found unfit for duty due to injuries incurred during a training accident in Germany.  He goes on to state that within 
6 months of his discharge he was awarded a 40% disability rating by the Department of Veterans Affairs (VA) and he desires his discharge to be changed to show that he was retired from the Army with a 40% disability rating. 

3.  The applicant provides copies of his VA 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’s records, though somewhat incomplete, show that he initially enlisted in the U.S. Army Reserve on 21 July 1990 and served until he enlisted in the Regular Army, on 4 June 1996, for a period of 3 years and training as a multiple launch rocket system (MLRS) crewmember, in pay grade E-4.  He completed one-station unit training at Fort Sill, Oklahoma and was transferred to Germany on 6 August 1996. 

3.  The applicant's Physical Evaluation Board (PEB) proceedings conducted under the Physical Disability Evaluation System are not present in the available records.  However, he was evaluated by an informal PEB on 14 April 1999 and a formal PEB on 7 May 1999.  He also received a formal PEB reconsideration on 20 July 1999 and a final Physical Disability Agency review on 4 August 1999. 

4.  On 7 October 1999, he was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24B(4), due to a disability that existed prior to service as determined by a PEB.  He had served 3 years, 4 months, and 4 days of active service during the period under review.

5.  In the processing of this case a staff advisory opinion was obtained from the U.S. Army Physical Disability Agency (PDA) which opines that the applicant did not receive a zero percent disability rating because all disability ratings from 0 – 20% equate to disability severance pay.  The opinion also states the applicant had not provided any evidence of error by the PEB or the PDA.  The official at the PDA recommend that no change be made to the applicant’s records.

6.  The advisory opinion was provided to the applicant for response and he responded to the effect that when he first attended the PEB he had no documentation from the attending physician who treated him in the field because the physician did not keep records.  However, when he was finally able to get the attending physician to provide some record of treatment he was very vague, but at least he acknowledged that he had been hurt in the field and that his injuries were not pre-existing.  He also provides copies of five supporting statements.

7.  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.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  This regulation also provides, in pertinent part, that when 

a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  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.

9.  Title 38, U.S. Code, sections 310 and 331, permits 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 medically unfitting 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.

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.  In the absence of evidence to show that the applicant’s disability was not properly rated in accordance with the VA Schedule for Rating Disabilities and his separation was not in compliance with laws and regulations in effect at the time, there appears to be no basis to grant his request, especially 13 years after the fact.  

2.  The applicant was found unfit for duty for his unfitting conditions as they existed at the time of his PEB hearings.   Department of the Army disability decisions are based on observations and determinations existing at the time of the PEB hearing.  His MEB/PEB proceedings are not available, and it is not known what conditions the Army found to be unfitting.

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

4.  The fact that the VA, in its discretion, may have awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Army.  

5.  In view of the foregoing, there is an insufficient 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)                                         AR20110023053



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ABCMR Record of Proceedings (cont)                                         AR20110023053



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