IN THE CASE OF:	  

		BOARD DATE:	  10 July 2012

		DOCKET NUMBER:  AR20120000462 


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 change of his medical discharge to a medical retirement.  

2.  He states the Department of Veterans Affairs (VA) has increased his disability rating to a combined rating of 50 percent (%) due to service-connected disability.  

3.  He provides two DD Forms 214 (Certificate of Release or Discharge from Active Duty) and VA Rating Decision.

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 6 November 1979.  Upon completion of initial entry training, he was awarded military occupational specialty 95B (Military Policeman).  He was honorably discharged on 10 May 1985 at his expiration term of service.  

3.  He enlisted in the Regular Army again on 22 October 1986.  On 1 January 1989, he was promoted to staff sergeant/E-6.  

4.  On 26 February 1993, he was placed on a physical profile for retropatellar pain syndrome with a physical profile serial of 113111.  His DA Form 3349 (Physical Profile) listed his assignment limitations as no running, jumping, or marching.  

5.  On 16 April 1993, he was evaluated by a Medical Evaluation Board (MEB).  After consideration of clinical records, laboratory findings, and a physical examination, the MEB found he had retropatellar pain syndrome, the painful result of physical and/or biomechanical changes to the knee joint – the area behind the knee where the patella (kneecap) and the femur (the thigh bone) meet.  He was referred to a Physical Evaluation Board (PEB).  

6.  During the processing of his MEB, he indicated he did not desire to continue on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  He agreed with the findings and recommendation of the MEB.

7.  On 20 April 1993, an informal PEB determined he was physically unfit for retropatellar pain syndrome (VA Schedule for Rating Disabilities (VASRD) codes 5299 and 5257) with minimal evidence of degeneration.  The PEB recommended his separation with severance pay with a 10% combined disability rating.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.  

8.  He was honorably discharged on 22 June 1993 under the provisions of Army Regulation 635-40, paragraph 4-24b(3), by reason of physical disability with severance pay.  He completed 12 years, 2 months, and 6 days total active military service. 

9.  He provides his VA Rating Decision, dated 5 October 2011, which indicates he filed a claim for increased evaluation that was received on 10 May 2011.  
Based on a review of the evidence, the VA made the following decision on his claim:

	a.  Evaluation of degenerative joint disease, left knee (10%) was increased to 40%, effective 10 May 2011; and
	b.  Service-connection for scar on posterior aspect of the neck was granted with an evaluation of 0%, effective 10 May 2011.

10.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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.

11.  Army Regulation 635-40, appendix B, states 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.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating.  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 at the time of separation.  

12.  The VASRD assigns code 5257 (knee, other impairment of) a 10% rating when it is slight; a 20% rating when it is moderate; and a 30% rating when it is severe.  

13.  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%.

14.  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 rated at less than 30 percent.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the VA has increased his disability rating to a combined rating of 50% due to service-connected disability.  

2.  The evidence of record shows the VA increased the applicant's disability rating from 10% to 40% for degenerative joint disease and granted him a 0% disability rating for a scar on posterior aspect his neck almost 20 years after he was discharged.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation and may increase a rating over time.

3.  An informal PEB found him unfit for military service for retropatellar pain syndrome at a 10% disability rating.  As a result he was discharged from active duty under the provisions of Army Regulation 635-40 by reason of disability with severance pay with 12 years, 2 months, and 6 days creditable military service.

4.  The law provides for retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Since he was assigned a 
10% combined disability rating, he did not meet the requirements for a medical retirement.

5.  He provided no evidence which shows his disability processing was in error or unjust or that his conditions were improperly evaluated such as to warrant a rating higher than 10 percent.  Therefore, his discharge by reason of physical disability with entitlement to severance pay was proper and correct at the time and there is no basis to change his medical discharge to a medical retirement.

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)                                         AR20120000462





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ABCMR Record of Proceedings (cont)                                         AR20120000462



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