IN THE CASE OF:

		BOARD DATE: 30 April 2014

		DOCKET NUMBER:  AR20130013402 


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, her discharge due to physical disability be changed to a disability retirement.

2.  The applicant states that:

	a.  She was sent to a medical evaluation board (MEB) because she received a permanent profile and could not be retrained or placed in another position in her unit.  

	b.  During the entire MEB process no one ever contacted her about her injuries or the process taking place.  The only issue considered by the MEB was her neck injury.  She later learned the condition was not a neck strain but a torn ligament in her neck.

	c.  The MEB did not consider a hernia or that she had gastritis which was diagnosed while she was on active duty.  The gastritis is included in her Department of Veterans Affairs (VA) claim.

	d.  Before she was discharged, she was in a dual status position, as an administrative assistant in a U.S. Army Reserve (USAR) garrison unit.  Her military status ended on 16 January 1990 when she was discharged from the USAR.  She became devastated and depressed.  The problem with her neck injury caused her to often be bed ridden, unable to move her head or right arm.  She has had two hernia surgeries.

	e.  She learned that she could ask for correction to her records when she began her VA appeals.

3.  The applicant did not provide any supporting documentation.

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.  Following prior service in the Regular Army and the Army National Guard, the applicant enlisted in the USAR on 18 September 1987 as a specialist (SPC)/E-4. 

3.  Her service medical records are not available for review.  

4.   A 7 September 1989 DA Form 3349 (Physical Profile) shows her medical condition as chronic torticollis (an abnormal, asymmetrical head or neck position).  The condition is shown as permanent with assignment limitations of "No Pushups; No Situps; No overhead work."  The unit commander indicated this would require a change in her military occupational specialty (MOS) stating, "With the physical profile that limits this Soldier's movement and lifting it will be almost impossible for this Soldier to continue in her current MOS."  

5.  A 16 November 1989 DA Form 3947 (Medical Evaluation Board Proceedings) shows in:

	a.  item 13 (Diagnosis) chronic torticollis since 1988 was incurred while she was on active duty and is permanently aggravated by service;

	b.  item 14 an "X" in the block indicating the board recommended the applicant be referred to a Physical Evaluation Board (PEB);

	c.  Item 15, an "X" in the block indicating the patient (applicant) does not desire to continue on active duty;
	d.  Item 24, an "X" in the block indicating the applicant agreed with the board's findings and recommendation; and

	e.  Item 25, the applicant's signature, dated 28 November 1989.

6.  A PEB convened on 12 December 1989.  The proceedings show in:

	a.  Item 8 (Disability Description):

		(1)  "Chronic torticollis."

		(2)  The PEB concluded that her medical condition prevented satisfactory performance of duty in her grade and primary MOS.

	b.  Item 9, the PEB found her physically unfit, recommended a combined rating of 10%, and separation with severance pay if otherwise qualified.

	c.  Item 13, she indicated she did not concur and demanded a formal hearing with personal appearance.  She also requested a regularly appointed counsel to represent her.

7.  A 26 December 1989 U.S. Army Physical Evaluation Board letter notified her that a formal PEB hearing in her case was scheduled for 30 January 1990 at the Forest Glen Section, Walter Reed Army Medical Center.  

8.  A 10 January 1990 DA Form 751 (Telephone or Verbal Conversation Record) shows the applicant withdrew her request for a formal hearing.  

9.  Orders D11-22, U.S. Total Army Personnel Command, dated 16 January 1990, show she was discharged from the USAR effective 16 January 1990.  She was authorized physical disability severance pay in the grade of SPC.  The percentage of disability is shown as 10%.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 her or her office, grade, rank, or rating.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and/or severance pay benefits:

* the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty for training
* the disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence

11.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

12.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

13.  Title 38, U.S. Code, 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 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 the 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.  There is no available evidence to support the applicant's assertion that she was never contacted during the entire MEB process or that the MEB did not consider a hernia she had and gastritis which was diagnosed while she was on active duty.  

2.  There is no available evidence that either a hernia or gastritis was incurred or aggravated while she was entitled to basic pay or that either such condition precluded her performance of duty.

3.  The evidence shows the applicant agreed with the MEB findings and recommendation. She did not indicate there were any other medical conditions that should have been reviewed by the MEB or PEB and she ultimately withdrew her request for a formal PEB hearing.
4.  There is no evidence she suffered any medical conditions other than chronic torticollis, the diagnosis shown in the MEB and PEB proceedings, that precluded the performance of her duties.  

5.  The VA service-connected disability compensation is strictly a VA benefit paid to a veteran because of injuries or diseases that occurred while serving on active duty or were made worse by active military service.  While the Army only rates those medical conditions that result in the Soldier being determined unfit for continued military service, the VA generally rates a Soldier for all conditions incurred in or aggravated by military service.  The Army and the VA disability evaluation systems are independent of one another.  Only those conditions that render a member unfit for continued military duty will be rated by a PEB.  However, the VA can rate all service-connected conditions.

6.  In view of the above, there is insufficient evidence to grant the applicant's request.

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)                                         AR20110016871



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ABCMR Record of Proceedings (cont)                                         AR20130013402



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