IN THE CASE OF:	  

		BOARD DATE:	  24 September 2013

		DOCKET NUMBER:  AR20130003731 


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, correction of her records to show she was medically retired vice honorably discharged from the U.S. Army Reserve (USAR). 

2.  The applicant states:  

* Her captain/company commander did anything he could to destroy her career
* Upon discharge in 2005, the Department of Veterans Affairs (VA) rated her right shoulder, back, and both knees to be 70 percent disabling
* She had those same problems during the last 6 months of active service
* She believes she should have received a permanent physical profile and been medically retired because she had 24 years of service
* She had physical profiles from September 2003 to February 2004 and she also had surgery at the VA hospital after she was discharged

3.  The applicant provides: 

* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 24 February 2004 
* Orders 041-176, releasing her from active duty, dated 10 February 2004
* Orders 05-007-00023, discharging her from the USAR, dated 7 January 2005
* Notification of Eligibility for Retired Pay at Age 60, dated 18 June 2003
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Automated Standard Form 600 (Chronological Record of Medical Care), dated 17 February 2004
* VA rating decisions, dated 1 November 2005 and 20 June 2011
* Social Security Administration (SSA) disability decision
* DD Form 2807-1 (Report of Medical History), dated 16 January 2003 and 7 January 2004
* DD Form 2808 (Report of Medical Examination), dated 16 January 2003 and 7 January 2004
* DD Form 2795 (Pre-Deployment Health Assessment)
* Multiple medical documents, notes, and medical records dated between 2003 and 2004
* DA Form 3349 (Physical Profile) - Temporary, dated 12 November 2003
* Various VA Progress Notes 

CONSIDERATION OF EVIDENCE:

1.  Title 10, USC, 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 records show she was born in June 1960. 

3.  She enlisted in the USAR on 25 September 1980.  She served through multiple reenlistments in a variety of assignments in military occupational specialty (MOS) 42A (Human Resources Specialist), and she attained the rank/grade of sergeant first class (SFC)/E-7. 

4.  She was ordered to active duty on 25 February 2003 and she was issued a Notification of Eligibility for Retired Pay at Age 60 on 18 June 2003.  

5.  She was honorably released from duty on 24 February 2004 under the provisions of chapter 4, Army Regulation 635-200, due to completion of required active service.

6.  She received an annual Noncommissioned Officer Evaluation Report (NCOER) covering the rating period March 2003 to February 2004 for her duties as an Instructor/Writer while assigned to the 6th Battalion, 80th Infantry, 80th Division (Institutional Training):

* her rater rated her performance, physical fitness, leadership, training, and responsibility/accountability as "Success" and her overall potential as "Fully Capable"
* she passed the Army Physical Fitness Test and she met the height and weight standards
* her senior rater rated her overall performance as "Successful" and her overall potential as "Superior"

7.  The complete facts and circumstances surrounding her discharge from the USAR are not available for review with this case.  However, on 7 January 2005, Headquarters, 80th Division, Richmond, VA published orders discharging her from the USAR effective 7 January 2005 with an under other than honorable conditions (emphasis) characterization of service. 

8.  Her service medical records are not available for review with this case.  Additionally, her service records do not contain:

* a permanent physical profile
* a diagnosis of a disabling condition that rendered her unable to perform the duties required of her MOS, grade, or that she was unfit
* a medical examination that warranted her entry into the Army Physical Disability Evaluation System (PDES)

9.  She provides the following documentation.

	a.  A DA Form 2173, dated 17 February 2004, and allied medical documents show that in April 2003 she sustained lower back pain, a partial tear to the right rotator cuff, and bilateral knee pain.  The DA Form 2173 states she injured her back, knees, and rotator cuff while mobilized for Operation Enduring Freedom (OEF) at Fort Jackson, SC and Fort Pickett, VA. 

	b.  A VA rating decision, dated 1 November 2005, which shows the VA awarded her service-connected disability compensation for/at the rate of:  

* right shoulder impingement syndrome, 30 percent 
* intervertebral disc involving S1 spinal nerve root segment, 20 percent
* degenerative changes of the right knee, 10 percent
* right knee instability, 10 percent
* degenerative changes of the left knee, 10 percent
* left knee instability, 10 percent
* tinnitus, 10 percent
* hearing loss, 0 percent

	c.  A VA rating decision, dated 20 June 2011, which shows she received an increase in service-connected disability for some of the above-mentioned conditions. 

	d.  An SSA disability decision, dated 15 September 2010, for depression, post-traumatic stress disorder, tenosynovitis of foot and ankle, impingement syndrome of the right shoulder, palpitations, patellar maltracking, hyperlipidemia, allergic rhinitis, hypertension, fibrocystic disease, low back pain, and osteoarthritis of both knees. 

	e.  A DD Form 2795, dated 3 March 2003, which shows she was fully deployable. 

	f.  A DA Form 3349, dated 12 November 2003, which shows she was issued a temporary profile for back and shoulder pain.  The profile stated she must perform daily exercise and engage in aerobic exercise three times a week.  The profile expired on 30 November 2003. 

	g.  A DA Form 2807-1, dated 7 January 2004, wherein she answered "Yes" to several questions and provided an explanation for each answer. 

	h.  A DD Form 2808, dated 7 January 2004, that shows she was assigned a PULHES of "2-2-1-1-1-1."  The examining official listed her degenerative joint disease of the knee as mild, low blood pressure, and shoulder impingement.  However, no unfitting condition was listed. 

10.  Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.




	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board
* when a Soldier receives a permanent medical profile, P3 or P4, and is referred by an MOS Medical Retention Board (MMRB)
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, U.S. Army Human Resources Command

	c.  The PDES assessment process involves two distinct stages:  The medical evaluation board (MEB) and the physical evaluation Board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.
11.  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 VA Schedule for Rating Disabilities (VASRD).  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

12.  Title 10, USC, 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, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

13.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

14.  Title 38, USC, 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 an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  

DISCUSSION AND CONCLUSIONS:

1.  None of the applicant's medical records are available for review with this case. However, she provides selected documents that show she sustained lower back pain, a partial tear to the right rotator cuff, and bilateral knee pain.  The DA Form 2173 states she injured her back, knees, and rotator cuff while mobilized for OEF at Fort Jackson, and Fort Pickett.  She appears to have seen medical officials and she was issued a temporary physical profile. 

2.  Referral to the Army PDES requires that a designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  There is no evidence to show she had:
* a permanent physical profile
* a diagnosis of a disabling condition that rendered her unable to perform the duties required of her MOS or grade
* a medical examination that warranted her entry in the PDES

3.  It is unclear what condition the applicant believes rendered her unfit.  She erroneously assumes that since she was mobilized and sustained pain she must be disabled.  However, referral to the Army PDES requires that a designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Her NCOERs clearly show she was capable of performing her duties.

4.  She argues that the VA awarded her service-connected disability compensation and the SSA declared her disabled.  However, the Army, VA or SSA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army.  Operating under different laws and their own policies, the VA or SSA do not have the authority or the responsibility for determining medical unfitness for military service.  The VA for example may award ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

5.  If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  However, the VA could potentially rate all service-connected conditions.  

6.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

7.  There does not appear to be an error or an injustice in her case.  In view of the circumstances in this case, there is insufficient evidence to grant the 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)                                         AR20130003731



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ABCMR Record of Proceedings (cont)                                         AR20130003731



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