BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120011161 


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 he be granted a higher disability rating and that all of his disabilities be considered.

2.  The applicant states he believes he would have received a higher disability rating if all of his unfitting conditions had been considered, such as:  the ”residual painful scar S/P [status post] appendectomy and hemicholectomy, post-traumatic stress disorder, status post right ankle fracture and ORIF [open reduction and internal fixation], lumbar strain and tinnitus.”  He goes on to state that the Army never checked him for any of these things when he was being medically boarded.

3.  The applicant provides a copy of his Physical Evaluation Board (PEB) Proceedings and his Department of Veterans Affairs (VA) Rating Decision.

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 10 July 2001 for a period of      4 years and training as an information technology specialist.  He completed his training and remained on active duty.  He reenlisted on 27 September 2004 for a period of 4 years, a selective reenlistment bonus, and assignment to Fort Bragg, North Carolina.

3.  He deployed to Afghanistan during the period of 20060123 – 20060601 and was promoted to the pay grade of E-5 on 1 July 2006.

4.  His medical evaluation board (MEB) and narrative summary are not available.  On 26 September 2008, a PEB convened at Fort Sam Houston, Texas to evaluate the applicant’s diagnosis of limited motion of right ankle, status post ORIF in June 2007 and screw removal in March 2008, status post appendectomy with right hemicolectomy and bilateral pes planus.  The PEB determined the applicant’s condition of limited motion of right ankle was 10% disabling and that the remaining two diagnoses were not unfitting, that they met retention standards, and did not pose significant profile restrictions and thus were not rated.  The PEB recommended he be discharged with severance pay of 10%.

5.  The applicant concurred with the findings and recommendation of the PEB on 30 September 2008 and waived a formal hearing of his case.

6.  On 3 November 2008, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to a disability with severance pay (non-combat related).  He had served 7 years, 3 months, and 24 days of active service and received $33,671.40 in severance pay benefits.

7.  On 18 May 2011, the applicant received an increase in his VA disability ratings, which granted him:

* An increase from 50% to 70% service connection for PTSD effective 
17 September 2010


* An increase from 10% to 20% service connection for status post right ankle fracture and ORIF effective 17 September 2010
* 10% service connection for tinnitus
* 10% service connection for residual scar, status post appendectomy and hemicolectomy effective 17 September 2010

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-2b, 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  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.  

9.  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.

10.  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.  The applicant's MEB and narrative summary are not available, and in the absence of evidence to the contrary it is presumed his discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights.  Accordingly, the disability rating he received was appropriate under the circumstances.

2.  The mere presence of impairment does not, of itself, justify a finding of physical unfitness and/or medical retirement from the Army, and there is no requirement to rate a condition that is not found to be unfitting.  He was separated because he had a single medically unfitting condition and the remainder of the conditions identified was deemed unfitting, and thus were not rated. 

3.  The fact that the VA, in its discretion, has awarded the applicant a disability rating for all of his conditions identified while on active duty and others 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.  It is also presumed that the applicant had an opportunity to dispute the findings and recommendation of the medical boards and chose not to do so.

5.  Accordingly, he was properly diagnosed and discharged in accordance with the applicable laws and regulations with no indication of any violations of his rights.

6.  Therefore, in the absence of sufficient evidence to show the applicant was not properly diagnosed when he was evaluated and discharged in 2008, there appears to be no basis to grant his requests. 

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)                                         AR20120011161





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ABCMR Record of Proceedings (cont)                                         AR20120011161



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