IN THE CASE OF:

		BOARD DATE:	    20 May 2014 

		DOCKET NUMBER:  AR20130016021 


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 correction of his records to show he was medically retired vice honorably discharged for disability with severance pay. 

2.  The applicant states with all the disabilities he had upon his discharge, the Army should have retired him.  They were all military injuries.  The Department of Veterans Affairs (VA) rated his service-connected conditions at 90 percent.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA Rating Decision, medical records, progress notes, and other related correspondence

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 14 July 2005 and he reenlisted on 2 September 2008.   He held military occupational specialty 31B (Military Police).  

2.  He served in Iraq from 26 November 2006 to 16 February 2008.  He was promoted to sergeant/E-5 on 11 October 2011.  He was assigned to Fort Irwin, CA. 


3.  On 27 May 2011, a medical evaluation board (MEB) convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the below conditions and recommended his referral to a physical evaluation board (PEB).  

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Right slap lesion right shoulder

X
2.  Kidney stones
X

3.  Tobacco abuse
X

4.  Adjustment disorder
X

4.  On 23 June 2011, after having been counseled, the applicant indicated he reviewed the contents of the MEB and agreed it completely covered all his medical conditions.  He authenticated this form with his signature.  He acknowledged:

* he reviewed the contents of the MEB, physical profile, and narrative summary
* he understood the PEB would only consider the conditions listed on his physical profile
* the physical profile included all his conditions and whether or not they meet retention standards
* the conditions that did not meet retention standards were properly listed
* he provided all medical documents in his possession to be included in the MEB
* he agreed that the MEB accurately covered his medical conditions at the time

5.  On 21 July 2011, an informal PEB convened and found the applicant's right shoulder condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to arm, right/dominant, limitation of motion, listed as superior labral anterior-posterior lesion right shoulder.  

6.  The PEB rated his condition under the VA Schedule for Rating Disabilities (VASRD) code 5201 and granted a 20% disability rating.  The PEB considered his other conditions but found them not to be unfitting and therefore not rated.  The PEB recommended the applicant be separated with entitlement to severance pay if otherwise qualified.   

7.  Throughout the disability process, he was counseled by a PEB Liaison Officer (PEBLO) and informed of his rights at each step of the process.  His counseling culminated on 22 July 2011 when he was counseled by a PEBLO regarding his medical condition, the findings of the MEB, the PEB process, and his rights under the law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

8.  On 11 October 2011, he was honorably discharged under the provisions Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability, non-combat related with entitlement to severance pay.  The DD Form 214 he was issued shows he completed 6 years, 10 months, and 28 days of active service. 

9.  On 26 March 2013, the VA awarded him service-connected disability compensation as indicated below.  His original disability claim was received on 11 June 2012.

* Migraine, including migraine variants, 50% from 12 October 2011
* Post-Traumatic Stress Disorder, 50%
* Functional right SLAP tear, right shoulder, 10%
* Mild functional low back sprain, 10%
* Neck strain, 10%
* Tinnitus, 10%
* Gastroesophageal Reflux Syndrome, 10%
* Chondromalacia patella, left knee claimed as bilateral knee condition, 0%
* Chondromalacia patella, right knee claimed as bilateral knee condition, 0%
* Rhinitis, claimed as respiratory condition with scar tissue, 0%
* Erectile dysfunction, associated with Post-Traumatic Stress Disorder, 0%

10.  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.  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.


11.  Army Regulation 635-40 states the mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

12.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

13.  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.  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.

14.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

15.  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 an error or injustice in the Army rating.  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.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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 sustained various injuries and/or illnesses that warranted his entry in the PDES.  He underwent an MEB which recommended his referral to a PEB.  The PEB found his medical condition of arm, right/dominant, limitation of motion, listed as SLAP lesion right shoulder prevented him from reasonably performing the duties required of his grade and military specialty.  He was determined to be physically unfit for further military service.

2.  The PEB also considered his other medical conditions despite their having been determined to have met retention standards and found those other conditions to be not unfitting and therefore not ratable.  The PEB recommended his separation with entitlement to severance pay with a 20 percent disability rating.  The applicant agreed with the findings and recommendations and waived his right to a formal hearing.

3.  The applicant does not provide medical evidence to support a diagnosis of any other condition that failed retention standards and/or was unfitting at the time of his separation.  Furthermore, his contention that since the VA awarded him service-connected disability for his conditions at a higher rate, the Army should have, in effect, done the same, is without merit.  

	a.  Under the legacy PDES, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish error by the Army.  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) that affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

	b.  If and when identified, diagnosed, evaluated, and rated, 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.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  

	c.  In the applicant's case, there was no diagnosis for any other conditions being a disabling factor at the time of his separation.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

4.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation.  The applicant was properly rated 20 percent disabled for his condition.  There is no evidence to support rating any other medical condition.

5.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated him 20 percent disabled for his condition.  There is no evidence that he should have been awarded a higher rating.  Since this rating was less than 30 percent, by law he was only entitled to severance pay.

6.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred 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)                                         AR20130016021





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ABCMR Record of Proceedings (cont)                                         AR20130016021



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