IN THE CASE OF:	  

		BOARD DATE:	  16 July 2013

		DOCKET NUMBER:  AR20120020798 


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, in effect, a medical retirement and reversal of the decision to deny him Combat-Related Special Compensation (CRSC).

2.  The applicant states:

	a.  Item 23 (Type of Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) should read "Medically Retired" and not just "Discharge" based on orders and the retirement regulation.  Item 28 (Narrative Reason for Separation) should read "Combat Related Disability with Severance Pay."

	b.  He was discharged through the Medical Review Board process and discharged for a combat physical disability he sustained while serving on duty.  The Army rated the disability at 20 percent and clearly indicated it was a combat-related injury on his discharge order as well as on the Medical Evaluation Board (MEB) review.  To his remembrance during his out processing no one clarified the retirement entitlements and rules to him.  He was 23 years old, on crutches, and being discharged when he wanted to stay in the Army.

	c.  He was recently advised of the CRSC benefits program.  But, when he applied for CRSC, the U.S. Army Human Resources Command (HRC) advised him that after reviewing his records he qualified for the benefit and probably needed medical retirement, but his DD Form 214 needed to be corrected in order for him to be eligible for the benefits.

3.  The applicant provides:

* Personnel Qualification Record, Part I
* Standard Form 589 (Abbreviated Medical Record)
* Standard Form 93 (Report of Medical History)
* Standard Form 502 (Narrative Summary (Clinical Résumé))
* DA Form 3349 (Physical Profile)
* DA Form 3947 (MEB Proceedings)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings
* DA Form 5891-R (Acknowledgement of Counseling on Legal/Procedural Rights)
* disability separation message
* DD Form 214
* DA Form 4700 (Medical Record – Supplemental Medical Data)
* 2004, 2006, 2007, and 2008 Department of Veterans Affairs (VA) Rating Decisions
* Standard Form 144 (Statement of Prior Federal Service)
* Board of Veterans' Appeal appeal
* CRSC Reconsideration Request Form

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 25 April 1990.  He completed training and he was awarded military occupational specialty 19D (Cavalry Scout/Bradley Fighting Vehicle System).  He served in Germany from 2 September 1990 through 1 September 1992.

2.  The applicant provides copies of:

	a.  A Standard Form 589, dated 29 July 1991, that shows he sustained an injury to his right ankle on 6 April 1991.

	b.  A Standard Form 93, dated 16 December 1991, that shows he underwent an MEB examination.  The examination noted he was not able to lean forward on his right ankle due to an ankle injury.  He underwent ankle operations on 9 April and 31 July 1991.

	c.  A Standard Form 502, dated 17 January 1992, that states:

		(1)  At the present time the applicant was unable to run, jump, march, or stand for more than about 2 hours with 15 minutes of break.

		(2)  It was highly unlikely his ankle would improve to the extent of being fit for full active military duty.  He may have progressive pain and limitation of action, and post-traumatic arthritis of the ankle.  He may require future surgery.  He may re-develop symptoms from his apparent loose body.

		(3)  It was recommended the applicant be given a permanent level 4 profile, no running, jumping, marching, squatting, stooping, and crawling.  No standing greater than 45 minutes per one hour.

		(4)  It was also recommended the applicant be medically discharged in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraphs 3-31(d), 3a, 3-14(a)2, and 3-14(d).

	d.  A DA Form 3349, dated 21 January 1992, that shows he was given a permanent physical profile of 11P4111 for post-traumatic right ankle arthritis.  He was restricted from performing the Army Physical Fitness Test push-ups, sit-ups, and swimming and determined to be non-deployable.

	e.  January 1992 MEB Proceedings that show he was diagnosed with post-traumatic right ankle arthrosis, osteochrondritis, dissecans, loose bodies and loss of motion, right ankle, post-traumatic.

	f.  A DA Form 199, dated 20 February 1992, that shows an informal PEB considered the applicant's case and found his condition prevented him from performing his duties and determined that he was physically unfit due to traumatic arthrosis with osteochrondritis dissecans of right ankle, injury on 6 April 1991.  He was rated under the VA Schedule for Rating Disabilities (VASRD) codes 5010 (Arthritis, due to trauma) and 5271 (Ankle, limited motion) and granted a 20-percent disability rating.  The PEB also advised that ratings of less than 30 percent for Soldiers with less than 20 years of active service required separation with severance pay in lieu of retirement and advised that he should contact a VA counselor to learn about available benefits.  The board made the recommended highlighted findings that:

		(1)  The member's retirement is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law.

		(2)  The disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

	g.  Acknowledgement of Counseling on Legal/Procedural Rights, dated 17 March 1992, wherein he acknowledged he understood his legal and procedural rights pertaining to his PEB.

	h.  Response to PEB Findings, dated 17 March 1992, wherein he waived his right to a formal hearing and concurred with the PEB's findings and recommendations.  The PEB was approved on the same date.

	i.  Message, dated April 1992, approving his 20 percent disability separation.  The message stated his disability did result from a combat-related injury.

4.  On 12 May 1992, he was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24e(3), by reason of disability with severance pay.  He completed 2 years and 18 days of creditable active service with no time lost.

5.  He also provides copies of:

	a.  A DA Form 4700, dated 22 October 2002.

	b.  A VA Rating Decision, dated 5 October 2004, that shows he was awarded:

		(1)  A 10 percent service-connected disability rating for chronic lower patellofemoral pain syndrome with incipient degenerative joint disease of the right knee degenerative joint disease of right knee.

		(2)  Continuation of post-traumatic osteochrondritis dissecans of right ankle that was currently rated at 20 percent.

		(3)  Denial of service-connection for multiple lumbar disc protrusions with right leg pain and numbness and degenerative joint disease of right hip secondary to mild genetic hip dysplasia.

	c.  A VA Rating Decision, dated 25 May 2006, that shows he was awarded service-connected disability rating for degenerative joint disease of the right knee that was increased from 10 to 20 percent effective 31 March 2004.

	d.  A VA Rating Decision, dated 14 June 2007, that shows:

		(1)  He was awarded 30 percent service-connected disability for muscular atrophy, right thigh joint and lower leg joint.

		(2)  A temporary evaluation of 100 percent based on surgical or other treatment necessitating convalescence effective 1 March 2007 with a 20 percent rating effective 1 June 2007.

		(3)  Denial of service-connection for left ankle and left forefoot conditions, left knee condition, and right forefoot.

		(4)  Confirmation of previous denial of service-connection for multiple lumbar disc protrusions with right leg pain and numbness as secondary to post-traumatic osteochrondritis dissecans of right ankle.

	e.  A VA Rating Decision, dated 30 July 2008, that shows continuation of his 30 percent rating for muscular atrophy, right thigh joint and lower leg joint.

	f.  A Standard Form 144, dated 16 October 2008, that lists his civilian employment from 1992 through 2008.

	g.  Board of Veterans' Appeals appeal, dated 19 May 2010, that shows he was awarded an increased 30 percent rating for post-traumatic osteochrondritis dissecans of the right ankle.

	h.  CRSC Reconsideration Request Form, dated 19 October 2012, wherein he requested reconsideration of his denial of CRSC based on his award of service-connected disability ratings (currently at 70 percent) from the VA.

6.  Army Regulation 635-40, in effect at the time, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

	a.  Paragraph 3-1b states the overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation must be considered.  The effect will be considered both from the standpoint of how the disabilities affect the Soldier’s performance and the requirements imposed on the Army to maintain and protect him or her during future duty assignments.  A Soldier may be unfit because of physical disability caused by a single impairment or physical disabilities resulting from the overall effect of two or more impairments even though each of them, alone, would not cause unfitness.

	b.  Paragraph 3-8 states the Soldier will receive counseling from an appointed PEB Liaison Officer (PEBLO) concerning their rights every step in the disability evaluation being with the decision to refer the Soldier to an MEB.  The PEBLO will advise the Soldier of the results of the MEB.  The Soldier will be given the opportunity to read and sign the MEB proceedings.

	c.  Paragraph 4-24e(3) states that based upon the final decision, the U.S. Army Physical Disability Agency will issue retirement orders or other disposition instruction for separation for physical disability with severance pay per Title 10, U.S. Code, section 1203.

7.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0% to 100% rising in increments of 10%.

	a.  Paragraph 2-10(b)(3), limitation of motion due to an ankle injury, does not meet the standards of medical fitness.  Chronic joint pain of an ankle that has interfered with walking, running, weight bearing, or satisfactory completion of training or military duty does not meet the standard.

8.  Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD shows that for diagnostic code 5271, the disability rating for ankle, limited motion, marked is 20 percent.  

9.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  

10.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

11.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for the military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at a different disability rating based on the same impairment.

12.  CRSC, as established by Title 10, U.S. Code, section 1413a, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat-related disabilities if it were not for the statutory prohibition for a military retiree to receive a VA disability pension.  Payment is made by the Military Department, not the VA, and is tax free.  Eligible members are those retirees who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10 percent disabling.  For periods before 1 January 2004 (the date this statute was amended), members had to have disabilities for which they have been awarded the Purple Heart and are rated at least 10% disabled or who are rated at least 60% disabled as a direct result of armed conflict, specially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree.

13.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance on the processing of CRSC appeals.  The guidance states that in order for a condition to be considered combat related, there must be evidence of the condition having a direct, causal relationship to war or the simulation of war.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that while serving on active duty the applicant sustained an injury to his right ankle and underwent two surgeries.  It was recommended the applicant be given permanent level 4 profile and medically discharged in accordance with Army Regulation 40-501.

2.  In January 1992, an MEB referred him to a PEB.  On 20 February 1992, a PEB found him unfit for traumatic arthrosis with osteochrondritis dissecans of right ankle, injury, with a combined rating of 20 percent and separation with severance pay.  He concurred with the findings and recommendations of the PEB and waived his right to a formal hearing.  On 12 May 1992, he was separated accordingly.

3.  The evidence of record shows his MEB and PEB processing were properly accomplished and does not demonstrate error or injustice in the disposition of his case by separating him from active duty with severance pay.

4.  His contentions, VA rating decisions, and medical documents he provided were carefully considered.  However, he wasn't retired because of an injury received as a direct result of armed conflict or caused by an instrumentality of war.  He was determined physically unfit due to limitation of motion of his ankle which precluded performance of his military duties.  There is no evidence of record and he has failed to show his injury was a direct result of armed conflict, occurred while engaged in hazardous service, in the performance of duty under conditions simulating war, or occurred through an instrumentality of war.  

5.  He appears to confuse service-connection for VA purposes with CRSC eligibility.  These are not necessarily the same.  If they were the same, CRSC would be automatic for those military retirees with VA disability pensions.  Service-connection for VA purposes means the VA has determined the disability was incurred or aggravated during military service.  CRSC determinations require evidence of a direct causal relationship to the military retiree's VA-rated disabilities to war or the simulation of war.

6.  With regard to the narrative reason for separation on his DD Form 214:

	a.  The evidence shows he was separated for physical disability and received severance pay.  He was not medically retired.  Medical retirement from military service requires the service member to enter the PDES and undergo an MEB and then a PEB.  The PEB must issue a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition.  Additionally, in order to receive a physical disability retirement the PEB must have granted them a disability rating of at least 30%.  He was properly given a 20 percent rating, his only unfitting condition, for his ankle condition in accordance with the VASRD.  The VA also gave him only a 20 percent rating for his ankle condition in October 2004.

	b.  There is no evidence of record and he provided insufficient evidence to support his contention that he should have received a medical retirement.  The narrative reason for separation on his DD Form 214 is commensurate with and corresponds to the reason for his discharge.

7.  In view of the foregoing, there is an insufficient evidentiary basis for correcting his DD Form 214 to show he was medically retired or showing his narrative reason for separation as combat-related disability with severance pay.

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)                                         AR20120020798



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ABCMR Record of Proceedings (cont)                                         AR20120020798



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