IN THE CASE OF:	  

		BOARD DATE:	  29 October 2013

		DOCKET NUMBER:  AR20130002882 


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, an increase in his disability rating. 

2.  He states he has a deteriorating condition in both heels and Achilles.  He adds his condition has not improved, but has worsened.  He offers he is currently at a 20 percent (%) disability rating.

3.  He does not provide any additional evidence.

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.  The applicant's record shows he enlisted in the Regular Army on 8 April 1986 for a period of 2 years in military occupational specialty (MOS) 76C (Equipment Records and Parts Specialist).
3.  On 2 March 1987, he was issued a permanent "P3" physical profile for painful heel (Bilateral Calcific Tendinitis Achilles Tendon).  His limitations were listed as no running, jumping, physical training, or marching.  The comments on the form indicated he was undergoing a Medical Evaluation Board (MEB).

4.  On 23 March 1987, he underwent an MEB at Martin Army Community Hospital, Fort Benning, GA, that diagnosed him with painful heels.  He was referred to a Physical Evaluation Board (PEB).  On 24 March 1987, he concurred with the findings and recommendation of the MEB.

5.  On 30 March 1987, he underwent a PEB and received a disability rating of 10% for painful heels, "x-ray evidence of calcification of the insertion of the Achilles tendon bilaterally; rated as degenerative arthritis."  Additionally, the PEB stated his activity limitations imposed by the permanent profile precluded his adequate performance of the normal duties associated with his office, grade, rank or rating.  Accordingly, he was found unfit for future service and he was separated from service with severance pay.

6.  The election portion of the DA Form 199 (PEB Proceedings) was blank.  However, a separate document contained in his personnel records, which is not completely legible, indicated he concurred with the PEB findings.  

7.  He was honorably discharged on 8 May 1987 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, physical disability, severance pay.  He completed 1 year, 1 month, and 1 day of creditable active service and received $3,067.20 in disability severance pay.

8.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It states 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.  

9.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (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’s 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 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.  Furthermore, unlike the U.S. Army, 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 U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was found unfit for duty for painful heels with a 10% disability rating.  Although the election portion of the 
DA Form 199 was left blank, it appears he concurred with the findings of the PEB as evidenced by his separation with severance pay.  

2.  He now maintains his condition has worsened and his disability rating has increased to 20%.  However, an award of a VA rating does not establish entitlement to a higher percentage for a medical retirement or separation.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  On the contrary, the Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

3.  No medical evidence has been presented by the applicant to demonstrate an injustice in the disability rating he received in service.  

4.  In view of the evidence in this case, there is no basis for granting his requested relief.

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)                                         AR20130002882





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ABCMR Record of Proceedings (cont)                                         AR20130002882



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