IN THE CASE OF: 

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120004497 


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 her military service records to reflect all her disabilities and by correcting the disability rating assigned by the Physical Evaluation Board (PEB).  

2.  The applicant states the PEB only evaluated her for lower back pain and did not evaluate her for left knee strain and right foot pain.  The applicant continues, she should have been medical discharged for her disabilities.  The applicant states she did not know the PEB was to consider all of her disabilities.

3.  The applicant further states the Department of Veterans Affairs (DVA) granted her service-connected disability for fibromyalgia [lower back pain], left knee strain, and right foot pain, while the Army only evaluated her for lower back pain. The applicant continues, she is presently receiving 40 percent disability from the DVA.  

4.  The applicant provides:

* ten page DVA Rating Decision memoranda, dated 20 June 2008
* five page DVA Entitlement Amount and Payment, dated 9 July 2008  


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 24 May 2003.  She successfully completed training and was awarded military occupational specialty (MOS) 15G (Aircraft Structural Repairer).

3.  A DA Form 3349 (Physical Profile), dated 13 January 2006, shows the applicant was issued a permanent profile for "CHRONIC LOW BACK PAIN." 

4.  A Medical Evaluation Board (MEB) Narrative Summary (NARSUM) indicates the applicant was evaluated on 13 March 2006, at which time she was diagnosed with chronic low back pain and myalgia.

5.  The applicant military service records do not contain a Commander's Statement. 

6.  On 31 March 2006, the approving authority approved the findings and recommendation of the MEB.  The MEB referred the applicant's case to a PEB for evaluation.  

7.  On 6 April 2006, the applicant concurred with the MEB findings and recommendations. 

8.  On 15 May 2006, an informal PEB found the applicant unfit based on chronic low back pain.  The PEB rated this conditions at 0 percent and recommended separation with severance pay.  There is no evidence in the applicant's military medical records that show she was unfit for duty due to left knee strain or right foot pain.

9.  The applicant's military medical records are unavailable. 

10.  On 17 May 2006, the applicant concurred with the findings and recommendation of the PEB and waived a formal hearing.  

11.  On 21 July 2006, the applicant was discharged by reason of disability, severance pay (12,171.60).  

12.  The applicant provided a ten page DVA Rating Decision, dated 20 June 2008, that shows she was rated as:

* 40 percent for fibromygia with myofasiitis
* 10 percent for left knee strain residuials
* 10 percent for metarsalgia, right foot

13.  Army Regulation 635-40 (Physical Evaluation), chapter 3 provides 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.  To be found unfit by reason of physical disability, individuals must be unable to perform the duties of grade, rank or rating.

14.  Army Regulation 635-40 states that 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.

15.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, retention and separation.  Paragraph 3-36 states that adjustment disorders are situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.


16.  Title 38, U. S. Code, sections 1110 and 1131, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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 DVA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct her military service records to reflect all her disabilities and increasing the disability rating assigned by the PEB has been carefully considered.  However, there is insufficient evidence to support her request.

2.  The applicant contends that her medical conditions were not properly considered by the MEB.  However, she has not provided any evidence to show her medical conditions were not properly considered.  Evidence shows that the MEB and PEB properly considered the applicant's medical condition.  She was found unfit due to chronic low back.  There is no evidence of record and the applicant has not provided evidence to show her left knee strain and right foot pain prevented her from performing her duties.

3.  There was no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which was not in itself considered disqualifying for military service when the applicant was found unfit because of chronic low back pain.  Only the unfitting conditions or defects and those which contributed to her unfitness would be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Since there is no evidence to show her left knee strain and right foot pain rendered her unfit, it was properly not considered by the MEB/PEB.

4.  Absent evidence of an error or injustice in the PDES process, there is insufficient evidence to show the applicant’s PEB disability rating is incorrect or that her separation with severance pay was not in compliance with law and regulation.  Therefore, 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 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)                                         AR20120004497





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ABCMR Record of Proceedings (cont)                                         AR20120004497



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