IN THE CASE OF:	

		BOARD DATE:	  25 June 2014

		DOCKET NUMBER:  AR20130016789 


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 an increase in his Army disability rating to at least 30 percent; in effect, a medical retirement.

2.  The applicant states:

* his current Army disability rating is 10 percent
* he has multiple disabilities that were rated, but not given a percentage upon his discharge
* he is rated as 70-percent disabled through the Department of Veterans Affairs (VA)
* he feels he was rushed and overlooked by the system and pushed through as a number rather than as a Soldier with a family who served his country

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)

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 enlisted in the Regular Army on 6 January 2003 and trained as a patient administrative specialist.

3.  He provided a DA Form 3349 (Physical Profile), dated 17 February 2010, which shows he was assigned a permanent physical profile rating of "3" in the physical capacity or stamina and lower extremities factors for:

* lumbago L4-5 spondylosis without neuritic pain or myelopathy
* obstructive sleep apnea
* recurrent hidradenitis suppurativa/abscesses
* recurrent pilonidal cysts
* irritable bowel syndrome
* migraine headaches

4.  In February 2010, an MEB diagnosed him with the following conditions that were deemed to be medically unacceptable:

* lumbago L4-5 spondylosis without neuritic pain or myelopathy
* obstructive sleep apnea
* recurrent hidradenitis suppurativa/abscesses
* recurrent pilonidal cysts

5.  The MEB found the following conditions medically acceptable:

* irritable bowel syndrome
* positive human leukocyte antigen (HLA) B27
* migraine headaches
* refractive error/astigmatism

6.  Item 30 (Continuation) of the applicant's DA Form 3947 states:

	a.  "In regard to issues relating to fitness for duty and disability compensation, I understand that the PEB will consider and review only those conditions listed on the DA Form 3947."

	b.  "The DA Form 3947 includes all my current medical conditions and whether or not they meet medical retention standards."

	c.  "I agree that this MEB accurately covers all my current medical conditions."

7.  The MEB recommended his referral to a PEB.  On 1 March 2010, he agreed with the findings and recommendation.

8.  On 24 March 2010, a PEB found him physically unfit due to degenerative arthritis (L4-L5 spondylosis).

9.  The PEB determined:

	a.  The applicant's multiple conditions (sleep apnea, recurrent hidradenitis suppurativa, and recurrent pilonidal cysts) were not unfitting, either independently or in combination with other conditions.

	b.  The MEB's medically-acceptable conditions listed above met medical retention standards and were found to not be unfitting, either independently or in combination with any other conditions.

10.  The PEB recommended a combined 10-percent disability rating and separation with severance pay.  On 26 March 2010, he concurred with the PEB findings and waived his right to a formal hearing.

11.  On 30 March 2010, the U.S. Army Physical Disability Agency approved the PEB's findings.

12.  On 9 June 2010, he was honorably discharged by reason of disability with severance pay, non-combat related.

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

14.  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.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that, after establishing the fact that a Soldier is unfit because of physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability.  Percentage ratings reflect the severity of the Soldier's medical condition at the time of rating.

16.  Title 38, U.S. Code, sections 310 and 331, permit 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he has multiple disabilities that were rated, but not given a percentage upon discharge.  However, on 1 March 2010, he agreed that the MEB accurately listed all of his current medical conditions and whether they met medical retention standards.  The evidence shows the PEB determined his conditions of:

	a.  sleep apnea, recurrent hidradenitis suppurativa, and recurrent pilonidal cysts were not unfitting, either independently or in combination with other conditions; and

	b.  irritable bowel syndrome, positive HLA B27, migraine headaches, and refractive error astigmatism met retention standards and were not unfitting, either independently or in combination with any other conditions.

2.  He now wants his disability percentage increased to at least 30 percent.  However, he concurred with the PEB findings in March 2010.

3.  There is insufficient evidence to show his unfitting conditions were improperly rated by the PEB in 2010.  Therefore, there is no basis for granting the applicant's request to increase his disability rating.
 
4.  His contention that he was rated as 70-percent disabled by the VA was noted.  However, the rating action by the VA does not demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.



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)                                         AR20130016789



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ABCMR Record of Proceedings (cont)                                         AR20130016789



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