IN THE CASE OF:	   

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120012671 


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 his disability rating of 40% for diabetes mellitus be changed to 60% and that he be assigned a disability rating for a mood disorder condition.

2.  The applicant states he was and is dependent on insulin at least four times a day.  He is on a restricted diet, he is on regulated/restricted activity with episodes of hypoglycemia reactions requiring weekend visits to a diabetic care provider, and he has been diagnosed with arterial hypertension as a result of complications with diabetes.  

3.  The applicant provides copies of his Physical Evaluation (PEB) Proceedings, three pages of a Chronological Record of Medical Care, his Department of Veterans Affairs (VA) Rating Decisions, and his Social Security Administration Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Puerto Rico Army National Guard (PRARNG) on 30 June 1989.  He completed his training and served with the PRARNG through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 30 November 1999.

2.  On 7 November 2002, he was ordered to active duty in the Active Guard Reserve program.  He deployed to Kuwait from 20031027 – 20040706 in support of Operation Noble Eagle. 
3.  On 23 June 2010, a PEB was conducted at Fort Sam Houston, Texas which found that his diagnosis of diabetes mellitus should be rated at 40% disabling.  The PEB also determined that his condition of a mood disorder was not unfitting and recommended that the applicant be granted permanent retirement with a 40% disability rating. 

4.  The applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case.  On 3 August 2010, he was promoted to the pay grade of E-7.

5.  On 25 October 2010, he was honorably retired from active duty at Fort Buchanan, Puerto Rico and placed on the Retired List by reason of permanent disability with a 40% disability rating.  

6.  On 12 April 2011, the Social Security Administration determined he was disabled.

7.  On 10 May 2011, the VA granted the applicant service connection for diabetes mellitus evaluated at 60% disabling and mood disorder, claimed as a mental condition, evaluated at 30% disabling.  

8.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  That regulation also provides for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings.

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.  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 physical evaluation board 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.  Based on the available evidence, it appears the applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities by competent medical authorities and his retirement with a 40% disability rating was in compliance with laws and regulations in effect at the time.

2.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing and are based upon conditions that render the Soldier unfit to perform his duties.  The Department of the Army ratings becomes effective the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show the evaluation and the rating rendered by the PEB were incorrect or that he should have received a higher disability rating at the time of separation.

4.  The fact that the VA, in its discretion, has awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation from the Department of the Army.

5.  Accordingly, there appears to be no basis to grant the applicant’s request.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ___x ____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   __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)                                         AR20120012671



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ABCMR Record of Proceedings (cont)                                         AR20120012671



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