IN THE CASE OF:	  

		BOARD DATE:	  17 May 2012

		DOCKET NUMBER:  AR20110023627 


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 medically retired instead of discharged for disability with severance pay.

2.  The applicant states he was awarded a 10-percent disability rating by the Army and was then awarded a 30-percent disability rating by the Department of Veterans Affairs (VA) less than 1 year after his discharge.  He is now rated as 40-percent disabled by the VA.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a VA rating decision, and 60 pages of his physical evaluation board (PEB) 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.  Having prior active and Reserve service, the applicant's records show he enlisted in the U.S. Army Reserve (USAR) on 2 November 2001 and held military occupational specialty 92A (Automated Logistical Specialist).

3.  He was ordered to active duty as a member of his USAR unit in support of Operation Iraqi Freedom and entered active duty on 20 October 2004.  He served in Kuwait/Iraq from 18 December 2004 to 4 May 2005.

4.  On 31 March 2005, he was treated at the 844th Engineer Battalion Aid Station, Kuwait, for neck pain and numbness in his arm/hand after lifting and moving vehicle parts.  On 5 May 2005, he was medically evacuated to Landstuhl Regional Medical Center, Germany.  On 8 May 2005, he was evaluated at Ireland Army Community Hospital, Fort Knox, KY, and determined to have degenerative disc disease of the cervical spine.  

5.  On 20 May 2005, he was assigned to the Medical Hold Company, Fort Rucker, AL.  In June and September 2005, he underwent surgeries in Dothan, AL, for cervical fusion of neck discs.  After the second surgery, he had complete relief of neck and arm pain but continued to experience numbness in his right fifth finger.  His narrative summary, dictated on 6 December 2005, shows:

* flexion was 35 degrees
* extension was 30 degrees
* right lateral flexion was 40 degrees and left lateral flexion was 52 degrees
* right rotation was 20 degrees and left rotation was 30 degrees

6.  On 8 December 2005, a medical evaluation board (MEB) convened and diagnosed him with degenerative disc disease of the cervical spine and paresthesia of the right fifth finger.  The MEB recommended his referral to a PEB.  On 20 December 2005 after being counseled on his rights, he agreed with the board's findings.

7.  On 21 December 2005, an informal PEB convened at Fort Sam Houston, TX, and confirmed his unfitting disability of chronic subjective neck pain, post-cervical fusion.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit for duty.  He was rated under the VA Schedule for Rating Disabilities (VASRD) code 5241 and assigned a 10-percent disability rating.  The PEB recommended his discharge with severance pay.  On 3 January 2006 after being counseled on his rights, he concurred with the board's findings and waived his right to a formal hearing.

8.  On 23 March 2006, he was discharged from active duty with severance pay.  He completed 1 year, 5 months, and 4 days of creditable active service during this period of service.  He completed 4 years of prior active service and 24 years, 1 month, and 23 days of prior inactive service.

9.  The applicant provides a VA rating decision, dated 11 April 2011, wherein it shows he received a 20-percent disability rating for degenerative disc disease, a 10-percent disability rating for tinnitus, and a 10-percent disability rating for right cervical radiculopathy and right ulnar nerve neuropathy effective 24 March 2006.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

11.  Army Regulation 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 PEB rates all disabilities using the VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

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

13.  Title 38, U.S. Code, sections 1110 and 1131, permit 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 an 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.  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.

14.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide 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.  In the applicant's case, several factors were considered to reach the rating indicated.  They include functional impairment, joints, motion, and the overall system covering the disabling condition.

15.  VASRD code 5241 applies to spinal fusion.  For spine injuries, a 10-percent rating is assigned when the forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.

16.  Ratings for spine injuries change as follows:  unfavorable ankylosis of the entire spine, 100 percent; unfavorable ankylosis of the entire thoracolumbar spine, 50 percent; unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine is 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine, 40 percent; or forward flexion of the cervical spine is 15 degrees or less; or favorable ankylosis of the entire cervical spine, 30 percent; and forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or the combined range of motion of the cervical spine is not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, 20 percent.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically retired instead of discharged with severance pay.

2.  On 21 December 2005, the PEB found him unfit for chronic subjective neck pain.  The PEB reviewed all the available and appropriate evidence.  There were no other unfitting conditions found.  The PEB recommended his separation with entitlement to severance pay with a 10-percent disability rating.  He concurred with the PEB's recommendation.

3.  On 18 April 2011, the VA awarded the applicant a 20-percent disability rating for degenerative disc disease, a 10-percent disability rating for tinnitus, and a 
10-percent disability rating for right cervical radiculopathy and right ulnar nerve neuropathy effective 24 March 2006.

4.  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 at 10 percent for his chronic neck pain.  There is no evidence to support a higher rating for chronic neck pain or for any other medical condition.  There is no evidence that he should have been awarded a higher rating.  Since this disability rating was less than 30 percent, he was only entitled to severance pay by law.

5.  The applicant's physical disability evaluation was conducted in accordance with laws 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 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)                                         AR20110023627



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ABCMR Record of Proceedings (cont)                                         AR20110023627



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