IN THE CASE OF:	  

		BOARD DATE:  8 April 2014

		DOCKET NUMBER:  AR20130012269 


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 reconsideration of his request for correction of his records to show he was medically retired due to physical disability instead of discharged with entitlement to severance pay.

2.  The applicant states, in effect, the Army was a chaotic place at the time of his separation for Soldiers exiting with disabilities.  He was placed in a rear detachment unit and seen by U.S. Army Reserve doctors called to active duty who did their best to treat patients without knowing their medical history.  He contends that this situation led to an incomplete evaluation of his medical conditions.

3.  The applicant contends, in effect, that his head injury was not properly evaluated and he believes he should have been extended on active duty for further evaluation.  Additionally, he was suffering from other medical conditions at the time he was processed through the Physical Disability Evaluation System (PDES) that were not considered.  Lastly, he only signed the physical evaluation board (PEB) because he believed that all his medical conditions listed on his medical evaluation board (MEB) had been presented to the PEB.

4.  The applicant argues, in effect, that his expiration term of service (ETS) date should have been extended to allow for a proper medical evaluation by an MEB/PEB of all his medical conditions but due to the impending war he was expeditiously discharged.  The radiology report, dated 14 February 2003, was conducted to determine if he had suffered an acute head injury and no examination was done to determine total recovery.  Since his discharge he has suffered mild memory loss stemming from this injury.  Further, his other medical conditions related to his back and right knee are not documented.  

5.  The applicant provides no additional information.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120014499, on 18 April 2013.

2.  His new arguments warrant consideration.

3.  During the original review of the case, the Board found the applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the PEB's recommendation; therefore, there was no basis to grant the applicant's requested relief.

4.  The applicant enlisted in the Regular Army on 7 July 1993.  He completed training and was awarded military occupational specialty 92A (Automated Logistical Specialist).  His record shows he completed several reenlistments during his period of service.  His final reenlistment occurred on 5 October 2000 for a 3-year term and established his ETS date as 4 October 2003.

5.  His complete medical records are not available for review.

6.  The applicant underwent a physical examination on 27 January 2003 for the purpose of an MEB.  The MEB narrative summary shows the following:

* Chief Complaint - left knee pain
* Past Medical History - genital herpes and chronic low back pain

7.  On 12 February 2003, he was seen at Blanchfield Army Community Hospital, Fort Campbell, KY for a head injury he sustained when he was hit in the head by a 2x4 board while trying to loosen a trailer chain.  His radiology examination, completed on 14 February 2003, shows a normal computed tomography of the brain without contrast.  There no fracture or other acute bony pathology was visualized.

8.  On 18 March 2003, the MEB evaluated his left knee pain.  The MEB diagnosed the applicant with osteoarthritis of the left knee which was deemed medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  He was subsequently referred to a PEB for further evaluation of this medical condition.

9.  A DA Form 199 (PEB Proceedings), dated 1 April 2003, shows an informal PEB found the applicant physically unfit for continuation on active duty due to osteoarthritis in his left knee.

   a.  The PEB recommended separation with severance pay and a 10 percent disability rating with severance pay.

   b.  The applicant concurred with the PEB's findings and waived a formal hearing.
   
   c.  On 4 April 2003, the PEB was approved for the Secretary of the Army.

10.  On 22 April 2003, he was honorably discharged under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability with entitlement to severance pay.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 9 years, 9 months, and 16 days of active service.  He received disability severance pay in the amount of $47,341.80.

11.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability when the unfitness is of such a degree that a Soldier is unable to perform the duties of this office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  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.

12.  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.

13.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

14.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows he was referred to an MEB for left knee pain.  The PEB reviewed all the available and appropriate evidence and found him unfit.  The PEB recommended separation with entitlement to severance pay with a 10 percent disability rating for osteoarthritis of his left knee.  He agreed with the PEB's findings and recommendations.

2.  The applicant contends that not all of his medical conditions were considered because the Army was focused on preparing for the war.  He further contends that his ETS date should have been extended to allow for a through medical evaluation.  The available record shows that in addition to his left knee pain, the applicant suffered from genital herpes, chronic low back pain, and he sustained a head injury during his period of service.  Although the head injury is not listed on his MEB, it is noted in his medical records and it is presumed that this injury was given consideration during his medical disability processing.  Nonetheless, applicable regulatory guidance states that the mere presence of a medical condition does not, in itself, justify a finding of unfitness because of physical disability.  There is insufficient evidence to show a head injury prevented him from performing his duties.  Absent evidence to the contrary, there is insufficient evidence to show that any of these medical conditions were severe enough to warrant evaluation through the PDES or that the evaluation of his other medical conditions would require him to be extended beyond his ETS date.

4.  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 physical disability evaluation system.  Since this rating was less than 30 percent, by law he was only entitled to severance pay.

5.  He has provided no evidence which shows that his disability processing was in error or unjust or that his conditions were improperly evaluated such as to warrant a rating higher than 10 percent.  Therefore, it has been determined that his discharge by reason of physical disability with entitlement to severance pay was proper and correct at the time and there is no basis to change his discharge to a medical retirement.


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 to amend the decision of the ABCMR set forth in Docket Number AR20120014499 dated 18 April 2013.




      _______ _  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)                                         AR20130012269



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ABCMR Record of Proceedings (cont)                                         AR20130012269



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