BOARD DATE:	  13 August 2013

		DOCKET NUMBER:  AR20130000576 


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 discharge be voided and that he be retired by reason of permanent disability.

2.  The applicant states that he was medically discharged from the Army with a combined disability rating of 20 percent and he believes that he should have been medically retired.  He goes on to state that he completed 3 years of active service and three tours in Iraq.  He also states that he hurt his ankle during deployment and he had three ankle surgeries.

3.  The applicant provides a two-page letter explaining his application, a copy of his medication profile and a letter from the Department of the Air Force advising that the applicant was not eligible for consideration by the Physical Disability Board of Review.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 June 1997.  He completed his training at Fort Jackson, SC and remained on active duty through a series of continuous reenlistments.

2.  He deployed to Iraq during the period 10 April 2003 through 26 March 2004,
4 March 2005 through 14 February 2006 and from 4 September 2007 through
18 October 2008.

3.  The applicant’s medical evaluation board proceedings are not present in the available records; however, his Physical Evaluation Board (PEB) proceedings show that the PEB convened at Fort Lewis, Washington on 9 March 2010 and determined that his condition of bilateral ankle degenerative arthritis was unfitting and recommended a 20 percent disability rating.  The PEB determined that he had conditions diagnosed as conditions 2 through 9 that were not unfitting and that any of the conditions either separately or combined rendered him unfit for his assigned duties.  The PEB recommended that he be separated with severance pay.

4.  The applicant concurred with the PEB findings and waived his right to a formal hearing.

5.  On 13 June 2010, the applicant was honorably discharged under the provisions of Army Regulation 635-40, chapter 4, due to disability with severance pay, combat related (enhanced).  He had served 12 years, 11 months, and 
26 days of active service.

6.  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.

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

8.  Title 38, U.S. Code, sections 310 and 331, permit the Department of Veterans Affairs (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.

9.  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 a 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 that the applicant's disabilities were properly rated in accordance with the VA Schedule for Rating Disabilities and his 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 he was assigned a disability rating of 20 percent for his unfitting condition (bilateral ankle degenerative arthritis) as it existed at the time of his PEB hearing.  He concurred with the findings and recommendation of the PEB.  There is no evidence to show he had other conditions that rendered him unfit to perform his duties.  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 the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show he was not afforded the proper disability processing or that the evaluation and the rating the PEB rendered 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.  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 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 during the Global War on Terrorism.  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)                                         AR20130000576



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ABCMR Record of Proceedings (cont)                                         AR20130000576



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