IN THE CASE OF:	  

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120011255 


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 item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was discharged because of service-connected disability.

2.  He states a Department of Veterans Affairs (VA) service-connected rating has been established.

3.  The applicant provides:

* VA rating decision
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)

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's record shows he enlisted in the Regular Army on 20 March 1990.  He was awarded military occupational specialties 91B (Medical Specialist) and 91W (Nuclear Medicine Specialist).  He attained the rank of sergeant/E-5.  

3.  His record is void of a separation packet containing the facts and circumstances surrounding his discharge processing.  However, he provided a copy of his MEB proceedings, dated 20 June 1996, showing he was referred to a PEB for bilateral spondylolysis.  The proceedings indicated the condition did not exist prior to service and was permanently aggravated by service. 

4.  He provided page 1 of his PEB proceedings that convened on 17 July 1996.  The PEB found:  "Progressive low back pain, with onset early in his military career, attributed to bilateral defects of pars interarticularis.  Bone scan negative, indicating no acute activity.  Accepted medical principles indicate a high probability that spondylolysis is a developmental abnormality, therefore, considered EPTS in origin."  The PEB further stated the applicant's functional limitations in maintaining the appropriate level of low back pain, caused by the physical impairments recorded above, made him unfit to perform the duties required of a sergeant in his military occupational specialty of a radiologic specialist.  His unfitting conditions were found to be not service incurred.  His impairment was determined to be EPTS and his disability had increased only to the extent of its accepted normal and natural progression; therefore, there was no permanent service aggravation.

5.  The PEB did not assign a disability rating and recommended the applicant’s separation without disability benefits.
  
6.  Item 25 (Separation Authority) of his DD Form 214 shows he was separated under the provisions of paragraph 4-24b(4) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  Item 28 shows he was discharged on 20 August 1996 by reason of "disability, existed prior to service, PEB."  His DD Form 214 also shows he completed a total of 6 years, 5 months, and 1 day of active military service.

7.  He provides a VA rating decision, dated 9 March 2012, which shows the VA granted him an overall or combined rating of 50 percent based on the following:

* a 20 percent disability rating for his spondylolysis with spondylolisthesis of the lumbar region
* a 10 percent disability rating for his radiculopathy of the left lower extremity associated with spondylolysis with spondylolisthesis of the lumbar region
* a 20 percent disability rating for his radiculopathy of the right lower extremity associated with spondylolysis with spondylolisthesis of the lumbar region

8.  Army Regulation 635-40 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/her office, grade, rank, or rating.  It states that 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 his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  Paragraph 3-3 states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.

9.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service.  While the VA may consider PDES records in making a determination of service-connected disability, the VA's determination is independent of determinations made during PDES processing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change the reason for his discharge has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  His record is void of a packet containing the facts and circumstances surrounding his separation processing.  However, based on the PEB document provided by him, his unfitting condition was determined to be EPTS and his disability had increased only to the extent of its accepted normal and natural progression.  He provides insufficient evidence to show otherwise.  Therefore, the PEB properly determined there was no permanent service aggravation.  The available evidence indicates he was properly processed through the PDES.

3.  His DD Form 214 identifies the authority and reason for his separation.  Absent evidence of error or injustice, this document carries with it a presumption of regularity that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

4.  The award of a VA rating does not establish entitlement to medical retirement or separation.  Furthermore, a VA rating is not evidence of error in a PDES rating.  Operating under its own policies and regulations, the VA awards ratings based on its independent determination that a medical condition is related to service, i.e., service-connected.  In this case, notwithstanding the VA rating decision assigned approximately 15 years after his discharge, there is insufficient evidence to overcome the presumption of regularity attached to the available PEB document and the DD Form 214 issued at the time of his discharge.

5.  In view of the foregoing, there is an insufficient evidentiary basis to support granting 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)                                         AR20120011255



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120011255



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1