IN THE CASE OF:	  

		BOARD DATE:  1 November 2012

		DOCKET NUMBER:  AR20120003061 


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 his discharge with severance pay be changed to a disability retirement.

2.  He states that based on his early separation due to his disabilities rated at the time at zero percent, he is asking for reconsideration of the findings and recommendation rendered at the time.  He believes the disability rating of zero percent was inaccurate and he should have been medically retired with a minimum disability rating of 50 percent.  He lists several medical conditions and symptoms which according to Public Law 107-103 are directly associated with Gulf War Syndrome.  He further advises that he was misdiagnosed and medically discharged for a cervical strain.  Based on evidence provided it is apparent that the cervical pain he is experiencing was/is associated with Gulf War Syndrome and not the result of the 1994 car accident.  The car accident and an injury incurred while carrying a rucksack further aggravated the injury which was already present.  

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and numerous pages of supporting documents.

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.  His military records show he enlisted in the Regular Army on 10 July 1990.  
He was awarded the military occupational specialty (MOS) of 92Y (Unit Supply Specialist).   

3.  He served in Southwest Asia from 19 November 1990 to 29 April 1991.

4.  A DA Form 3349 (Physical Profile), dated 1 February 1996, shows he was given a temporary physical profile for chronic cervical strain. 

5.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 February 1996, stated he incurred whiplash and muscular strain due to a motor vehicle accident on 4 September 1994 in which his vehicle was rear-ended and slammed into another vehicle on that same date.

6.  On 8 March 1996, a Medical Evaluation Board (MEB) referred the applicant to a Physical Evaluation Board (PEB) for chronic cervical muscle strain.  The chief complaint shown on his Narrative Summary (NARSUM) was constant neck pain with swelling since being involved in a motor vehicle accident on 4 September 1994.  The NARSUM also indicated he complained of headaches since the vehicle accident in 1994 and during July of 1995 he reinjured his neck carrying a rucksack. 

7.  The applicant agreed with the findings and recommendation of the MEB.  He indicated he did not desire to continue on active duty.

8.  On 15 March 1996, an informal PEB found him unfit for duty for chronic cervical muscle strain following a whiplash type injury in September 1994.  He demonstrated a full range of motion of neck, normal x-rays, and examination.  The PEB recommended a disability rating of zero percent and his separation with severance pay if otherwise qualified. 

9.  On 15 March 1996, the applicant acknowledged he had been advised of the findings and recommendations of the PEB and received a full explanation of the results and his legal rights pertaining thereof.  He concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.
10.  On 18 June 1996, he was discharged by reason of disability with severance pay.  His percentage of disability was zero percent.  He completed 5 years, 
11 months, and 9 days of active service characterized as honorable.

11.  He submits numerous medical documents related to his post-service Department of Veterans Affairs (VA) claim for disability compensation.  He also submits a Gulf War Review news article about veterans' compensation with information about chronic fatigue syndrome and fibromyalgia highlighted.

12.  He submits additional medical documentation indicating he conclusively suffered from Gulf War Syndrome. 

13.  The VA Rating Decision, dated 10 December 2004, shows he received a 
60 percent disability rating for chronic fatigue syndrome and a 10 percent disability rating for fibromyalgia.

14.  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.

a.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their 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.  
   

   b.  Chapter 4 contains guidance on processing through the Army PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the 


Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

15.  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 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent.

16.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  

   a.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  

   b.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  He contends it is apparent that the cervical pain he is experiencing was/is associated with Gulf War Syndrome and not the result of the 1994 car accident. 

2.  His records show he was evaluated by an MEB and PEB to determine whether he was fit for duty based on his rank and military specialty.  He agreed with the findings and recommendations of the MEB.  He indicated he did not desire to continue on active duty.  An informal PEB found him unfit for duty for chronic cervical muscle strain following a whiplash type injury.  The PEB 


recommended a disability rating of zero percent and his separation with severance pay.  He concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

3.  He was discharged with a zero percent disability rating for chronic neck pain.  He had other physical complaints at the time, most of them related to his motor vehicle accident in 1994, which was also determined to be the cause of his sore neck.  There is no evidence he suffered from or was diagnosed with chronic fatigue syndrome, fibromyalgia, or any other medical condition that rendered him physically unfit to perform his duties at the time of his discharge.  Therefore, there is no basis on which to grant the applicant's request.

4.  The award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. 

5.  Furthermore, the VA can evaluate a veteran throughout his/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  While the VA may have determined under its rules that he was service connected for chronic fatigue syndrome and fibromyalgia, that does not indicate the Army was in error by discharging him with a zero percent disability rating for chronic neck pain.

6.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.

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)                                         AR20120003061



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ABCMR Record of Proceedings (cont)                                         AR20120003061



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