IN THE CASE OF:	  

		BOARD DATE:  20 February 2014

		DOCKET NUMBER:  AR20130010440 


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 that his discharge due to disability with severance pay be voided and that he be retired by reason of permanent disability with a 30% disability rating.

2.  The applicant defers comments to counsel. 

3.  The applicant provides a three-page statement of his claim, a third-party statement describing his injuries, a letter from the Physical Disability Board of Review, VA Rating Decision, Separation Pay Worksheet, DD Form 214 (Certificate of Release or Discharge from Active Duty), separation documents, copies of documents from his medical records, and copies of his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) proceedings.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s discharge due to disability with severance pay be voided and that he be retired by reason of permanent disability with at least a 30% disability rating.

2.  Counsel states that the applicant’s diagnosis of cervical spondylosis C5 – C6 should be rated at 20% and his left C6 radiculopathy should be included separately and rated as 10%.  He should receive a combined disability rating of 30% and permanently retired for medical disability.  She goes on to state that the evaluating doctor acknowledged the existence of radiculopathy but told the applicant that spondylosis was already going to result in his separation and would not have any effect on his separation benefits.  She also states that the applicant’s medical condition and the stress of personal issues, unemployment and reemployment issues coupled with post-traumatic stress disorder (PTSD), and depression prevented him from discovering the injustice.  Additionally, he trusted the medical and PEB personnel’s explanation that a PEB determination was the best possible outcome and that there was nothing further he could do.    

3.  Counsel provides no additional documents other than those provided by the applicant.

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 was commissioned as an infantry Regular Army second lieutenant on 1 June 2002 upon graduation from the United States Military Academy at West Point.

3.  He deployed to Iraq during the period 20030522 – 20040217 and was promoted to the rank of captain on 1 September 2005.

4.  On 17 May 2007, a MEB was convened at Fort Benning, Georgia to evaluate the applicant’s diagnosed medical conditions of:

* Cervicalgia, cervical spondylosis C5-C6 with herniated nucleous pulposis (HNP), left, with left C6 radiculpathy: medically unacceptable
* Left knee patellofemoral syndrome; medically acceptable
* Chronic respiratory allergies; medically acceptable

5.  The MEB recommended that the applicant be referred to a PEB.  The applicant indicated that he did not desire to continue on active duty and he concurred with the MEB’s findings and recommendations.  

6.  On 6 June 2007 a PEB was convened at Fort Sam Houston, Texas which determined that his diagnosed condition of C5-6 herniated disc without significant neurologic deficit; range of motion limited by pain; positive tenderness and spasm was unfitting.  Although C6 neuritis is discussed, the electrodiagnostic study showed no motor deficit and varying reports demonstrate equal strength.  The PEB rated his condition as 10% unfitting and determined that his other conditions were not unfitting.  The applicant concurred and waived a formal hearing of his case.  

7.  On 23 August 2007, he was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(3) due to disability with severance pay.  He had served 5 years, 2 months, and 23 days of active service and was paid $43,920.00 in severance pay benefits.

8.  A review of the applicant’s evaluation reports shows that he essentially received maximum ratings up until the time of his discharge.

9.  On 21 February 2011, the Department of Veterans Affairs (VA) granted the applicant an 80% combined service- connected disability rating and is paying him at 100 percent due to his unemployability.  His conditions are rated at 70% for PTSD effective 19 November 2009 and 20% for disc herniation.

10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states disability compensation is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings.

12.  Army Regulation 635-40 also governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  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.


13.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  An award of a VA rating does not establish error or injustice on the part of the Army.  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 affects the individual's employability.

14.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of a service-connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.
 
DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case suggests that the applicant's disabilities were properly rated in accordance with the VA Schedule for Rating Disabilities and his separation with severance pay was in compliance with laws and regulations in effect at the time.

2.  The applicant was found unfit for duty and he was assigned a disability rating of 20 percent for his unfitting condition (C5-6 herniated disc) as it existed at the time of his PEB hearing.  The PEB found no significant neurological deficit associated with his herniated disc.  He concurred with the findings and recommendation of the PEB.  There is no evidence to show he had other conditions that rendered him unfit to perform his duties.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing.  The Department of the Army rating becomes effective the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show he was not afforded the proper disability processing or that the evaluation and the rating the PEB rendered were incorrect.

4.  The fact that the VA, in its discretion, awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department of the Army.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _  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)                                         AR20130010440





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ABCMR Record of Proceedings (cont)                                         AR20130010440



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