IN THE CASE OF:	  

		BOARD DATE:	  16 May 2013

		DOCKET NUMBER:  AR20120013751 


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 records to show she was retired by reason of permanent disability.

2.  The applicant states she should have been medically retired instead of being medically discharged with severance pay because of an error made by the Department of Veterans Affairs (VA).  She does not understand how she was found fit for post-traumatic stress disorder (PTSD) since it has been documented that she cannot be away from her family due to high anxiety resulting in her being non-deployable.  She states she was medically separated from the U.S. Army Reserve (USAR) because she was only granted a 20-percent disability rating on the only condition that was found unfitting and the VA initially rated her 
20-percent disabled for her back but has subsequently changed it to 40 percent.  Due to this turn of events through the VA rating process, she would have been medically retired instead of being separated.  She also states that her PTSD should be re-evaluated because she had to do home-station annual training with her Reserve unit while they went to different states because she could not be away from her family due to nightmares and anxiety caused by the thought of something bad happening to them if she were not there.

3.  The applicant provides copies of her:

* Post-Deployment Health Assessment
* DA Form 3349 (Physical Profile)
* VA Rating Decisions
* VA medication list
* Medical Evaluation Board (MEB) Proceedings
* Physical Evaluation Board (PEB) Proceedings
* discharge orders

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 2 October 1993.  She completed her training as an administrative specialist.  She was promoted to pay grade E-5 on 1 December 1996.

2.  On 3 August 1999, she was discharged to enter the Reserve Officers' Training Corps.

3.  On 15 December 2001, she was commissioned as a USAR second lieutenant in the Quartermaster Corps.

4.  On 9 January 2002, she entered active duty.  She was promoted to the rank of first lieutenant on 9 July 2003.  She deployed to Kuwait/Iraq during the period 9 July 2004-6 June 2005.  She was promoted to the rank of captain on 1 May 2005 during that deployment.

5.  On 8 January 2006, she was honorably released from active duty at Fort Lewis, Washington, due to miscellaneous/general reasons and was transferred to a USAR troop program unit in Colorado.

6.  On 27 April 2006, the VA awarded the applicant a rating of 20 percent for evaluation of low back strain.  On 31 October 2008, the VA awarded the applicant a combined 80-percent service-connected disability rating for:

* thoracic scoliosis – low back strain – 40 percent
* left hip status post-compression stress fracture of femoral neck – 20 percent
* eczema – 10 percent
* migraine headaches – 10 percent
* right knee strain – 10 percent

7.  On 13 July 2011, an MEB was conducted to evaluate the applicant's diagnosis of:

* thoracolumbar degenerative disk and joint disease with motor weakness in lower left extremity (LLE) in L5/S1 distribution
* chronic right shoulder strain
* chronic left hip strain
* migraine headaches
* ganglion cyst right wrist
* chronic bilateral knee strain
* right ankle degenerative joint disease

8.  The MEB determined that the diagnosis of thoracolumbar degenerative disk and joint disease with motor weakness in LLE in L5/S1 did not meet retention standards.  The remaining diagnoses met retention standards.  The MEB recommended the applicant's referral to a PEB.  The findings and recommendation of the MEB were approved and the applicant concurred as well.

9.  On 28 September 2011, a PEB was conducted at Fort Lewis, Washington, under the Disability Evaluation System (DES) Pilot Program and rated the applicant's condition (thoracolumbar degenerative disk and joint disease) as 
20-percent disabling.  The remaining diagnoses were determined to meet retention standards.

10.  The applicant did not concur with the findings and recommendations of the PEB and requested a formal hearing without a personal appearance and representation by counsel.  She also submitted a statement in her behalf explaining her disagreement.  However, she changed her election on 31 October 2011 to concur with the PEB findings.

11.  On 26 December 2011, she was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability with severance pay (20 percent) and was paid an estimated $123,591.60 in severance pay benefits.

12.  The applicant provides an undated VA Rating Decision indicating she has been granted a 90-percent combined disability rating for:

* thoracolumbar degenerative disk and joint disease with low back strain and thoracic scoliosis – 20 percent
* PTSD with major depression – 50 percent
* chronic right shoulder strain – 20 percent
* left wrist ganglion cyst – 10 percent
* right knee strain – 10 percent
* chronic left hip strain – 10 percent
* right ankle degenerative joint disease – 10 percent
* tinnitus – 10 percent
* scars, post-laparoscopy – 10 percent
* eczematoid dermatitis/eczema – 10 percent
* migraine headaches – 10 percent

13.  A review of the applicant's official records shows she received maximum officer evaluation reports up until 12 April 2011, the last report on file.  That last OER shows her performance was outstanding, and she performed each and every task with the utmost competence and accuracy.

14.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  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.

15.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

16.  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 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.

17.  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 on 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 on 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 evidence in this case suggests the applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities and her separation with severance pay was in compliance with laws and regulations in effect at the time.

2.  The applicant was found unfit for duty and she was assigned a disability rating of 20 percent for her unfitting condition (thoracolumbar degenerative disk and joint disease) as it existed at the time of her PEB hearing.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing.  The Department of the Army rating becomes effective on the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show she was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB were incorrect.

4.  The fact that the VA, in its discretion, 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 or medical retirement from the Department of the Army.

5.  Additionally, it appears that the applicant's PTSD did not surface or was not diagnosed until after her discharge because the VA did not initially diagnose the applicant as suffering from PTSD.

6.  Based on her evaluation reports showing her outstanding performance of duty, it does not appear that her PTSD was unfitting while she was serving and as such was not eligible for a disability rating at the time.

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



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 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 this action in no way diminishes the sacrifices made by her in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of her 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)                                         AR20120013751



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120013751



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1