IN THE CASE OF:	  

		BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120007742 


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 that she be given a disability rating under the Physical Disability Evaluation System (PDES).

2.  The applicant states that the Physical Evaluation Board (PEB) did not give her a disability rating for a disability/functional limitation that she believes began while she was on active duty.  She goes on to state that the Department of Veterans Affairs (VA) gave her a 50% disability rating and she believes that she should have received a 50% rating from the PEB. 

3.  The applicant provides copies of her PEB Proceedings, the results of her Non-Duty Related Fitness Determination, a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), four pages of documents from her medical records, her orders assigning her to the Retired Reserve, her 20-year letter, copies of her medical records and a copy of her VA Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 4 December 1985 for a period of 4 years and training as a light wheel vehicle mechanic.  

2.  A DA Form 5181-R (Screening Note of Acute Medical Care) shows she was treated for a complaint of back and lower abdominal pain, noted she had stated she slipped off a 5-ton truck two weeks prior.  In an attempt to catch herself, she twisted her body beyond normal.  She had fallen off another 5-ton in the same manner while in the field.  No other service medical records are available.
3.  She served until she was honorably released from active duty (REFRAD) at Fort Knox, Kentucky on 3 December 1989 due to the expiration of her term of service (ETS).  She had served 4 years of active service and was transferred to a U.S. Army Reserve (USAR) Troop Program Unit at Fort Knox.  She continued to serve and was promoted to the pay grade of E-7 on 1 March 2000.

4.  On 5 October 2006, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

5.  On 21 February 2007, a PEB was convened at Fort Lewis, Washington to render a fitness for duty determination of the applicant’s ability to perform her duties.  The applicant was evaluated for degenerative arthritis of the thoracolumbar spine and it was noted that she had profile restrictions (no walking in boots, field gear or rucksack walk) that prohibited her from performing the majority of common Soldier tasks.  The PEB found the applicant unfit without a disability rating as the case was adjudicated as a non-duty related case under the provisions of Department of Defense (DoD) Directive 1332.18 and DoD Instruction 1332.38 which requires that only a determination of fitness or unfitness be made.

6.  On 25 June 2007, the applicant was transferred to the Retired Reserve due to being medically disqualified – not as a result of own misconduct.

7.  On 30 July 2007, the applicant was granted a 10% disability rating by the VA for Lumbar Strain/Degenerative Disc Disease and Osteoarthritis.

8.  On 13 June 2009, she was granted an increase to 40% by the VA for Lumbar Strain/Degenerative Disc Disease and Osteoarthritis.

9.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

10.  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.

11.  Department of Defense Instruction 1332.38 directed that the Department of Defense Disability Evaluation System (DES) is established to conduct physical disability evaluations in a consistent and timely manner.  Members of the Reserve Components who are not on a call to active duty of more than 30 days and who are medically diagnosed for impairment unrelated to the member’s military status and performance of duty shall be referred to the DES solely for a fitness determination upon request of the member or when directed by the Secretary concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's fit for duty evaluation by the PEB and transfer to the Retired Reserve was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights.  

2.  The applicant has failed to show through the evidence submitted and the evidence of record that she was improperly diagnosed or evaluated by the PEB. There is simply insufficient evidence to show that her degenerative disc disease/arthritis was incurred while entitled to basic pay or is related to her 1988 injuries. 

3.  The fact that the VA, in its discretion, has awarded the applicant a 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.

4.  Accordingly, she was properly evaluated by the PEB and was properly transferred to the Retired Reserve in accordance with the applicable laws and regulations with no indication of any violations of his rights.

5.  Therefore, in the absence of sufficient evidence to show the applicant was not properly diagnosed when she was evaluated by the PEB and transferred to the Retired Reserve in 2007, there appears to be no basis to grant his 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)                                         AR20120007742





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ABCMR Record of Proceedings (cont)                                         AR20120007742



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