IN THE CASE OF:	  

		BOARD DATE:	  30 January 2014

		DOCKET NUMBER:  AR20130007866 


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 military records to show a higher disability rating.

2.  The applicant states her disability rating does not include her subsequent diagnosis of fibromyalgia.  She contends that no one informed her about this diagnosis until after she had accepted the disability rating and was clearing the installation.

3.  The applicant provides a copies from her service medical records.

CONSIDERATION OF EVIDENCE:

1.  On 8 February 2006, the applicant enlisted in the Regular Army.  She completed her initial entry training and was awarded military occupational specialty (MOS) 91B (Wheeled Vehicle Mechanic).

2.  A DA Form 3349 (Physical Profile), dated 18 November 2009, shows the applicant was assigned a permanent physical profile for bilateral knee pain.  She was restricted from performing any squatting, deep knee bends with lifting, or kneeling.  She was authorized to run or walk at her own pace and distance.

3.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows:

	a.  An informal PEB convened on 8 March 2010 to evaluate the applicant's physical condition.

	b.  The PEB determined she suffered from bilateral patellofemoral chondromalacia with full thickness chondral irregularities on left.  Her condition was rated as 10-percent disabling for each knee with a combined rating of 20 percent.

	c.  She was able to function in an administrative garrison setting; however, pain limited her ability to mount/dismount vehicles and to wear a combat load.  This limitation made her unfit for duty in MOS 91B.

	d.  The proceedings referred to six other medical conditions that were determined to meet retention standards.  However, they were not further identified or discussed.

	e.  The PEB recommended separation with severance pay if otherwise qualified.

	f.  The applicant concurred with the findings and recommendation and waived a formal hearing of her case.

	g.  On 11 March 2010, the PEB Liaison Officer signed the form indicating he had counseled the applicant concerning the contents of the proceedings and her legal rights pertaining thereto.

4.  On 14 June 2010, the applicant was honorably discharged for disability with severance pay.  She completed 4 years, 4 months, and 7 days of creditable active duty service and attained the rank of staff sergeant/pay grade E-6.

5.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating.  It provides for medical evaluation boards (MEB's) which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Medical Fitness Standards).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

6.  Army Regulation 635-40 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.  Army Regulation 635-40 states the narrative summary (NARSUM) to the MEB is the heart of the disability evaluation system.  In describing a Soldier's conditions, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service.  Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB Proceedings.  If the Soldier does not agree with any item in the medical board report or the NARSUM, he or she will be advised of appeal procedures.

8.  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 and 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.

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 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.  Unlike the 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military records should be corrected to show a higher disability rating based on an additional diagnosis of fibromyalgia.

2.  The available evidence shows the applicant was found to be unfit for retention due to bilateral knee pain rated as 20-percent disabling.  On this basis she was discharged with severance pay.

3.  The available records do not contain a copy of the MEB or NARSUM to identify the other six medical conditions that were found not to be unfitting.

4.  Furthermore, the applicant has not provided any medical documentation to substantiate her claim regarding a diagnosis of fibromyalgia or that she was unfit to perform her duties due to this condition.

5.  In view of the above, there is no evidence of error or injustice.  Therefore, the applicant's request should be denied.

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 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)                                         AR20130007866



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ABCMR Record of Proceedings (cont)                                         AR20130007866



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