BOARD DATE:	  29 January 2013

		DOCKET NUMBER:  AR20120010236 


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 records to show she was retired due to physical disability.

2.  The applicant states she has undergone multiple surgeries and has ongoing service-connected medical issues.  She was separated due to disability rated at 10 percent and received severance pay.  She is now rated by the Department of the Veterans Affairs (VA) at 100 percent permanently disabled.  She is faced with medical complications brought on by her medical history while serving on active duty.  Each year she is faced with the challenges of trying to live a normal life.  Her disability takes her out of work for several weeks or months at a time.  She contends that she served her country well and would really appreciate the Board granting her a medical retirement.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Photocopy of her service medical records
* Letter from the VA, undated

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.  On 6 July 1983, the applicant enlisted in the Regular Army.  She completed her initial training and was awarded military occupational specialty 94B (Food Service Specialist).

3.  On 22 January 1992, a formal physical evaluation board (PEB) convened to consider the applicant's medical conditions.  The PEB found the applicant unfit due to chronic abdominal pain following multiple abdominal procedures including hysterectomy and bilateral salpingo-oophorectomy.  Her medical condition was rated at 10 percent disabling and considered to be permanent in accordance with VA Schedule for Rating Disabilities (VSARD) code 7301.  The PEB recommended that the applicant be separated with severance pay, if otherwise qualified.

4.  On 10 March 1992, the applicant was discharged due to physical disability, with severance pay.  She had attained the rank of sergeant, pay grade E-5, and she had completed a total of 9 years and 15 days of creditable active service.

5.  The undated VA letter provided by the applicant states she had severe atonic bowel which required reconstructive surgery with rerouting of her intestines in July 2011 and in June 2012.  She also had gallbladder surgery in September 2012.  She has ongoing, severe, cramping, abdominal pain associated with chronic intractable diarrhea and incontinence with bowel movements every 5 to 15 minutes after eating or drinking.  This has not improved and will lead to medical complications including malabsorption and malnutrition and its associated medical complications.  Her declining health, weight loss, ongoing diarrhea with pain makes realistic ongoing successful employment impossible.  Her chronic back pain has been exacerbated by frequent trips to the bathroom.  The pain medication required for pain control would impair her mental capabilities.  Based on this information, the author feels that the applicant is totally and permanently disabled and no realistic accommodation modifications of the work site could allow her to perform satisfactory duties.

6.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 
30-percent disabling.  It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

7.  Title 38, U.S. Code, sections 310 and 331, permit 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 physically unfit 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.

8.  Title 38, U.S. Code, section 4.114 (Schedule of Ratings) states that VASRD code 7301for adhesions of the peritoneum with moderate pulling pain on attempting to work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation alternating with diarrhea or abdominal distension, is rated at 10 percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her military records should be corrected to show she was retired due to physical disability because she has undergone multiple surgeries and has ongoing service connected medical issues.

2.  The available evidence shows the applicant was evaluated by a PEB while on active duty and found unfit for duty due to a medical condition rated at 10 percent disabling.  She was subsequently discharged with severance pay.

3.  The VA letter provided by the applicant clearly indicates that her medical condition has worsened over the years.  Her medical condition is such that she is now unable to work.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability and/or social functioning.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20120010236



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ABCMR Record of Proceedings (cont)                                         AR20120010236



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