IN THE CASE OF:	  

		BOARD DATE:  12 November 2013

		DOCKET NUMBER:  AR20130002871 


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 he be transferred to the Permanent Disability Retired List (PDRL) (it appears he wants a medical retirement). 

2.  The applicant states:

* upon being discharged from active duty, he was assigned a 30% disability rating by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB)
* he was discharged without consideration of being transferred to the PDRL
* this error has prevented him from being eligible for retirement benefits since the time of his discharge (17 years ago)
* his condition has significantly deteriorated over the years
* with his combined 30% disability rating and unfitting conditions, he is requesting transfer to the PDRL  

3.  The applicant provides:

* Department of Veterans Affairs (VA) documentation
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 20 December 1995 and 2 July 1990
* National Guard Bureau Form 22 (Report of Separation and Record of Service)
* Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) documentation
* MEB/PEB proceedings
* DA Form 3349 (Physical Profile)	

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.  Having prior active service in the Regular Army (RA) and inactive service in the Army National Guard, the applicant enlisted in the RA on 24 November 1993.  He served as a personnel actions specialist.

3.  He was issued a permanent profile on 25 May 1995 for chronic left leg pain.

4.  In August 1995, an MMRB recommended that his records be forwarded for MEB processing.

5.  On 25 October 1995, an MEB diagnosed the applicant with:

* multiple arthralgias, including bilateral knees and right elbow, etiology unknown
* chronic mechanical low back pain
* recurrent, multiple angiolipomas
* prostate nodule
* mild knee and elbow inflammation, cause as yet to be determined
* history of increased "LFTs," now resolved

6.  The MEB recommended his referral to a PEB.  On 1 November 1995, he agreed with the findings and recommendations.

7.  On 2 November 1995, a PEB found him physically unfit due to multiple arthralgias bilateral knees, right elbow and chronic low back pain with few objective findings.  He was rated for pain in more than 2 major joints.  The PEB recommended a combined 20 percent disability rating percentage and separation from the service with severance pay.  On 7 November 1995, the applicant concurred with the PEB's findings and recommendations and waived a formal hearing.

8.  On 8 November 1995, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB's findings.

9.  On 20 December 1995, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability, severance pay.

10.  He provides VA documentation which shows he is receiving service-connected disability compensation (30%).

11.  Title 10, U.S. Code, chapter 61, provides for the 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.

12.  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.  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 rating of less than 30 percent.

13.  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 that after establishing the fact that a Soldier is unfit because of physical disability and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability.  Percentage ratings reflect the severity of the Soldier's medical condition at the time of the rating.

14.  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.





DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends he was assigned a 30% disability rating by the MEB/PEB, evidence shows the MEB did not assign any disability rating and the PEB recommended a 20% disability rating.    
 
2.  The applicant concurred with the findings and recommendation of the PEB on 7 November 1995; however, it appears he now wants his disability rating increased to match his VA rating (30%) and correction of his records to show he was medically retired.

3.  It is acknowledged the VA granted him a 30% disability rating.  However, an award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different laws and its own policies and regulations, the VA, has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only those conditions found to be unfitting.

4.  Regrettably, there is insufficient evidence to show his disability was improperly rated by the PEB in 1995.  Therefore, there is no basis for granting the applicant's request to increase his disability rating for a medical retirement.

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)                                         AR20130002871





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ABCMR Record of Proceedings (cont)                                         AR20130002871



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