IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120000551 


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, in effect, change of his discharge by reason of disability with severance pay to retired by reason of permanent disability.

2.  The applicant states his rating was unjust because he was not rated for post-traumatic stress disorder (PTSD).  He goes on to state he has the lasting effects of PTSD and he does not understand how the Department of Veterans Affairs (VA) can give him 50% for PTSD and the Army does not rate him at all.  Additionally, he does not feel he was rated fairly for his asthma and the numerous times he had pneumonia and bronchitis and he believes he should be retired by reason of permanent disability.

3.  The applicant provides a copy of his VA Rating Decision, an incomplete copy of his Physical Evaluation Board (PEB) proceedings, and copies of his 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 he enlisted in the Regular Army on 25 February 2003 for a period of 3 years and training as an airborne infantryman.  He completed all of his training at Fort Benning, GA and was transferred to Korea on 13 August 2003.

3.  He completed his tour in Korea and he was transferred to Fort Carson, CO.  He deployed to Iraq with his unit on 1 August 2004 and he was advanced to the pay grade of E-4 on 1 October 2004.

4.  The applicant received a gunshot wound to the left shoulder on 20 November 2004 and he was medically evacuated from Iraq to Landstuhl Regional Medical Center in Germany.  He was subsequently returned to Fort Carson.

5.  The applicant reenlisted on 23 May 2006 for a period of 3 years and a selective reenlistment bonus (SRB).

6.  The applicant’s evaluations under the Physical Disability Evaluation System (PDES) are not present in the available records; however, the PEB proceedings provided by the applicant indicate a Medical Evaluation Board (MEB) evaluated him for six conditions, including chronic left shoulder pain and weakness and asthma (not all listed).

7.  On 22 May 2007, a PEB was convened at Fort Lewis, WA and determined he was unfit for duty.  The PEB determined he was entitled to a 20 percent (%) disability rating percentage for his chronic left shoulder injury and 0% for asthma.  The PEB also determined the other conditions listed in his MEB diagnosis met retention standards and were not unfitting.  Accordingly, they were not rated.  The PEB recommended the applicant's separation with severance pay and a 20% disability rating.

8.  On 16 July 2007, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), due to disability with severance pay.  He had served 4 years, 4 months, and 22 days of active service and he was paid $15,828.00 in severance pay benefits.


9.  A review of the medical records provided by the applicant indicates he was hospitalized while in basic training in 2006 and at Fort Carson for suspected pneumococcal pneumonia.

10.  On 30 November 2007, the VA granted the applicant a 70% combined disability rating for PTSD (50%), asthma (30%) and residuals of a gunshot wound to left shoulder (10%).

11.  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.

12.  Army Regulation 635-40 states 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.  That regulation also contains the provisions for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier’s disability ratings.

13.  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.

14.  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 his completed MEB/PEB packet and 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.

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.

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 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:

1.  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.


2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20120000551





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ABCMR Record of Proceedings (cont)                                         AR20120000551
	


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