BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120011415 


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 a disability retirement or in the alternative a disability rating of 10 percent (%) or higher.  He also requests correction of the date of birth (DOB) listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

2.  The applicant states the Department of Veterans Affairs (VA) granted him a 10% disability rating in 1988 so he needs the Army to do the same for his condition.  He also claims the DOB on his DD Form 214 is in error.  

3.  The applicant provides a self-authored statement, VA benefits summary letter, dated 18 April 2011, and his DD Form 214 in support of his request.  

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, after serving in the U.S. Army Reserve (USAR), he enlisted in the Regular Army on 23 September 1986.  The DD Form 4 (Enlistment/Reenlistment Document) documenting this enlistment lists his DOB as 2 May 1966.  All documents and records prepared during his enlistment and during his active duty tenure, including his DA Form 2 (Personnel Qualification Record-Part I) lists his DOB as 2 May 1966, with the exception of the DD Form 214 he was issued upon separation on 4 January 1988.  

3.  On 15 September 1987, a Physical Evaluation Board (PEB) convened at Fort Gordon, Georgia and evaluated the applicant’s case.  The PEB found the applicant’s “congenital flatfeet” rendered him unfit for further service and assigned a disability rating of 0% under the Veterans Administration Schedule of Rating Disabilities (VASRD) codes 5299 and 5276 (mild).  The PEB noted the condition existed prior to service (EPTS) and was aggravated by service.  The PEB recommended the applicant’s separation with severance pay.  

4.  On 14 October 1987, the applicant concurred with the PEB's findings and recommendation and withdrew his request for a formal hearing.  At that time, the PEB proceedings were approved for the Secretary of the Army by proper authority on the same date.  

5.  On 4 January 1988, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability, severance pay. The DD Form 214 he was issued at the time shows he completed a total of 
1 year, 3 months, and 12 days of creditable active service.  It also lists the incorrect day in the DOB entered in item 5 (DOB).  

6.  The applicant provides an unsigned first page of a summary of benefits letter from the VA, dated 18 April 2011.  This document indicates he has a combined disability rating of 30 percent.  He fails to provide any information regarding what conditions make up the combined disability rating and/or any supporting military medical or VA medical treatment records, or information upon which the VA based its disability rating.   

7.  Department of Defense Instruction 1332.39 (Application of the Veterans Administration Schedule for Rating), in effect at the time, implemented policy,  assigned responsibilities, and prescribed procedures, for rating disabilities of Service members determined to be physically unfit and who were  eligible for disability.  It contained guidance on zero percent ratings and minimum ratings and states occasionally, a medical condition that causes or contributes to
unfitness for military service is of such mild degree that it does not meet the criteria for even the lowest rating provided in the VASRD under the applicable code.  A zero percent rating may be applied in such cases even though the lowest rating listed is 10 percent or more, except when "minimum ratings" are specified. 

8.  Army Regulation 635-40 establishes the Army 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.  Paragraph 3-5 contains guidance on rating disabilities.  It states the percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  Under the provisions of Title 10, U.S. Code, chapter 61, these ratings are assigned from the VASRD. 

9.  Title 38, U.S. Code, sections 1110 and 1131, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for medical retirement and/or correction of his disability rating has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The applicant’s separation from active duty complied with applicable laws and policies, the evidence of record confirms the applicant was properly processed through the PDES and provided a disability rating based on the unfitting condition identified by the PEB.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The evidence shows the PEB based on the extremely mild nature of the applicant’s condition assigned a 0% disability rating which was permissible under the governing DODI in effect at the time.  The fact the VA may have assigned a minimum 10% rating in 1988 for the same condition under their policies and procedures does not call into question the validity of the rating decision assigned by the PEB, with which the applicant concurred at the time.  
4.  Absent medical evidence showing the applicant's condition required a higher rating from the PEB at the time there is an insufficient evidentiary basis to support a change to his disability rating.  Further, the applicant is advised that even if his PEB rating was changed to 10% he still would not qualify for a medical/disability retirement, which requires a 30% or higher disability rating.  

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

6.  The applicant’s DOB is incorrectly listed on his DD Form 214 and should be corrected to read 2 May.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x___  ____x____  __x______  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the board recommends that all Department of the Army records of the individual concerned be corrected by amending item 5 of his DD Form 214 to show his date of birth as 2 May as shown on his enlistment contract.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to increasing his disability rating or showing he was separated with a disability retirement. 




      _______ _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)                                         AR20120011415



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ABCMR Record of Proceedings (cont)                                         AR20120011415



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