IN THE CASE OF:	  

		BOARD DATE:  11 March 2014

		DOCKET NUMBER:  AR20130010105


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 his medical discharge be converted to a medical retirement.

2.  The applicant states the considerations used, when he was deemed unfit for duty, stopped with his right shoulder.  He contends he has multiple physically limiting conditions that are equally debilitating.  If all of these conditions had been considered, his Army disability rating would have been well over 30 percent, thus qualifying him for a medical retirement after nearly 17 years of active service.

3.  The applicant provides the following documents, arranged chronologically:

* numerous Standard Forms 600 (Health Record – Chronological Record of Medical Care) and allied documents, spanning the period 23 June 2009 through 26 April 2011
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 15 November 2010
* VA Form 21-0819 (VA/Department of Defense (DOD) Disability Evaluation Board Claim), dated 15 November 2010
* numerous pages related to his compensation and pension examination, which was conducted by the VA on several dates in December 2010
* DA Form 3349 (Physical Profile), dated 16 August 2011
* DA Form 2166-8 (Noncommissioned Officer Evaluation Report), for the period 1 October 2010 through 10 August 2010
* a copy of his Enlisted Record Brief
* Medical Evaluation Board (MEB) Narrative Summary (NARSUM), dated 16 August 2011
* DA Form 3947 (MEB Proceedings), dated 26 August 2011
* DA Form 5889 (Physical Evaluation Board (PEB)) Transmittal Document, dated 14 October 2011
* DA Form 199 (PEB Proceedings), dated 14 November 2011 and approved on 30 November 2011
* Orders 343-0003, issued by Installation Management Command (IMCOM), Headquarters, U.S. Army Garrison, Fort Carson, Fort Carson, CO, on 9 December 2011
* Orders 339-0016, issued by IMCOM, Headquarters, U.S. Army Garrison, Fort Carson, Fort Carson, CO on 5 December 2011
* his VA Rating Decision, dated 31 January 2012
* a letter from the VA, dated 11 February 2012

CONSIDERATION OF EVIDENCE:

1.  On 27 April 2009, after prior service in the U.S. Navy, the applicant enlisted in the Regular Army in the rank/grade of sergeant/E-5.  

2.  On 9 October 2009, he completed his advanced individual training (AIT) and was awarded military occupational specialty (MOS) 25Q (Multichannel Transmission Systems Operator-Maintainer). 

3.  On or about 2 January 2010, he was reassigned to Fort Carson, CO.

4.  On various dates in December 2010, he underwent his VA compensation and pension examination.  

5.  On 26 August 2011, an MEB convened at the Evans Army Community Hospital, Fort Carson, CO.  

   a. The MEB noted numerous other diagnoses, which did not fall below retention standards, including:

* anxiety disorder (not otherwise specified)
* traumatic brain injury (TBI)
* lumbar strain
* headaches, muscle tension type
* bilateral plantar fasciitis
* left ankle fracture status – post orif (open reduction internal fixation)
* left shoulder strain
* fracture of the third metacarpal
* pseudofolliculitis barbae
* dermatophytosis
* allergic/contact dermatitis
* right hip strain
* allergic rhinitis
 
   b. The MEB referred his case to a PEB, based on his chronic right shoulder strain, which was incurred while he was entitled to base pay.  

   c. On 22 September 2011, the MEB findings and recommendation were approved.  

   d. On 27 September 2011, he concurred with the MEB's findings and recommendations.  He acknowledged his understanding that the PEB would only consider and review the conditions listed on his DA Form 3947.  He further agreed that the MEB accurately covered his current medical conditions.

6.  On 14 November 2011, an informal PEB convened at Fort Lewis, WA, considered his case and found his condition prevented him from performing the duties required by his MOS.  

   a. The PEB determined he was physically unfit due to right shoulder impairment that originated in 2000 and was reinjured in 2003 and 2009. 

   b. He was rated under the VA Schedule for Rating Disabilities (VASRD), code 5201 (Limited Motion of Arm) and granted a 10 percent disability rating.

   c. The PEB noted the MEB's diagnoses numbered 2-6, 8, and 11-14 were determined to meet retention standards by the military treatment facility (MTF).  Further consideration by the PEB found the conditions to be not unfitting; therefore, not ratable as they are not listed on the Physical Profile as limiting any of his functional activities, his commander does not consider the conditions to hinder his performance and the case file contains no evidence that these diagnoses independently, or combined, render him unfit for his assigned duties.

   d. The PEB noted the MEB's diagnoses numbered 7 and 9 were determined to meet retention standards by the medical treatment facility (MTF).  Further consideration by the PEB found the conditions to be not unfitting and, therefore, not ratable as they are not listed on the Physical Profile as limiting any of his functional activities, and the case file contains no evidence that these diagnoses independently, or combined, render him unfit for his assigned duties.

   e. The PEB noted the MEB's diagnosis number 10 was considered by the PEB and found to be not compensable, as it was not deemed to constitute a physical disability although it may have been administratively unfitting.

   f. The PEB recommended that he be separated from the service with entitlement to severance pay if otherwise qualified.  

   g. On 17 November 2011, the applicant concurred with the PEB's findings and recommendations and waived his right to a formal hearing of his case.

   h. On 30 November 2011, the PEB's findings and recommendation were approved.

7.  On 22 December 2011, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of physical disability with severance pay.  His DD Form 214 confirms he completed 2 years, 7 months, and 26 days of active military service during this period of enlistment, and 13 years, 9 months, and     10 days of prior active service.  This form also shows he received $94,896.00 in disability severance pay in conjunction with his discharge. 

8.  He submitted a copy of his MEB NARSUM, MEB Proceedings, PEB Proceedings, and his VA Rating decision in support of his request.  His MEB NARSUM and MEB Proceedings identify each of his stated disabilities; however, after medical evaluation, only the right shoulder strain was deemed unfitting.  His PEB Proceedings support the conclusions reached in his MEB Proceedings.  His VA Rating Decision shows he was granted 70 percent service-connected disability rating for the conditions previously considered by the MEB and PEB.

9.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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.

   a. Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

   b. Paragraph 3-5 contains guidance on rating disabilities.  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.  Any nonratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable.

10.  Title 38, U.S. Code, sections 1110 and 1131, permits 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.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.

11.  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 rated at least 30 percent.

12.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested his discharge with severance pay be changed to disability retirement.  His request was carefully considered; however, there is insufficient evidence to support this request.

2.  The evidence of record shows he suffered from one medical condition that rendered him unable to satisfactorily perform the duties of his grade and specialty.  His commander recommended his referral to an MEB because of his inability to physically perform the basic functions of his MOS due to his shoulder condition.  Consequently, his records were evaluated by an MEB that referred him to a PEB.  He concurred with the findings of the MEB.  The PEB found him medically unfit, rated his disabling condition at 10 percent, and recommended his separation by reason of physical disability with entitlement to severance pay.
3.  He now believes he should receive an upgrade of his disability status because the VA granted him a different percentage for numerous other conditions not found unfitting by either the MEB or PEB.  

4.  However, an award of a different rating by another agency does not establish error in the rating assigned by the Army's PDES.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) and affects the individual's civilian employability.  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.  Any rating action by the VA does not compel the Army to modify its rating.

5.  He contends he suffers from multiple physically limiting conditions that are equally debilitating, and if all of these conditions had been considered, his Army disability rating would have been well over 30 percent, thus qualifying him for a medical retirement.  

6.  The evidence of record specifically his MEB and PEB Proceedings, show that all of his conditions were considered and in each evaluation, only the right shoulder strain was considered severe enough to be deemed unfitting.

7.  His physical disability evaluation was conducted in accordance with law and regulations and there does not appear to be an error or an injustice in his 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 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)                                         AR20090007788



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