BOARD DATE:	  3 June 2014

		DOCKET NUMBER:  AR20130016984 


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 her military records to show she was retired due to physical disability.

2.  The applicant states, in effect, her physical disability separation with severance pay should be changed to a permanent disability retirement because the Department of Veterans Affairs (VA) has granted her a disability rating of 60 percent.  She further states that she is not asking for any extra compensation.  She understands the ratings by the Army and VA are different.  She is requesting this change in order to obtain a military identification card so that she would be eligible for more affordable lodging prices when she travels to see other physical therapists and doctors who are available sooner than those in the VA hospital near where she lives.

3.  The applicant provides copies of:

* A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated         20 September 2006
* A DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A VA Letter written to the applicant, dated 25 April 2013

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 29 July 2003.  She completed the required training and she was awarded military occupational specialty 68J (medical logistics specialist).

3.  The applicant's DA Form 199 shows a PEB convened on 20 September 2006 to consider the applicant's medical condition.

	a.  She was found physically unfit to perform the duties of a Soldier of her rank and primary specialty.  This finding was based on chronic low back pain due to altered biomechanics (using crutches). 

	b.  Status post L4/L5 laminectomy and diskectomy, December 2005

	c.  Residuals of constant dull low back pain without radiculopathy, muscle spasm or deformity.

	d.  Range of motion limited to 35 degrees flexion by pain alone.

	e.  Extensive profile restrictions and chronic pain prevent full duty function as a medical supply specialist and her command did not recommend retention.  

	f.  Her condition was rated 10 percent disabling in accordance with the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5299 and 5243.  The PEB noted no other diagnoses.

	g.  The PEB recommended the applicant be separated with severance pay if otherwise qualified.  The applicant's concurrence/non-concurrence is not indicated on the available copy of the DA Form 199.

4.  On 15 December 2006, the applicant was discharged from active duty due to a physical disability with severance pay.

5.  In a letter, dated 25 April 2013, the VA granted her a combined disability rating of 60 percent effective 1 December 2012.

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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.

7.  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% and 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 at less than 30%.

8.  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 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.  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 contends that her military records should be corrected to show she was retired due to physical disability because the VA has awarded her a combined disability rating of 60 percent.

2.  The PEB rated her chronic low back pain at 10 percent disabling and found her physically unfit to perform her military duties.  Accordingly, she was discharged with severance pay in 2006.  There is no apparent error or injustice with this action.

3.  The available evidence indicates the VA granted the applicant a combined disability rating of 60 percent effective in 2012.  While the particular medical conditions are not discussed in the available evidence, it is presumed that the applicant's chronic low back pain is included as a part of the VA rating.

4.  An award of a VA rating does not establish entitlement to medical retirement. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability.

5.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability up or down depending upon that agency's examinations and findings at the time.

6.  The applicant's desire to obtain a military identification card in order to reduce her lodging expenses is not a valid justification upon which to base a change in her disability rating.

7.  In view of the circumstances in this case, the applicant's request should be denied.

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 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)                                         AR20130016984



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ABCMR Record of Proceedings (cont)                                         AR20130016984



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