BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130017058 


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 military records to show he was medically retired.

2.  He states, in effect, he believes the disability rating (percentage) was wrong when he was discharged.  He believes he should have been given a medical discharge after going through the Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) process.  He states his symptoms are worse.

3.  He does not provide any additional evidence.

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.  On 21 September 1982, the applicant enlisted in the Regular Army (RA).  On 4 January 1991, he was honorably retired and placed on the Temporary Disability Retired List (TDRL) due to physical disability.  He was credited with completing 8 years, 3 months, and 24 days of active service.  

3.  On 21 April 1993, he was found physically fit for active duty and removed from the TDRL.  

4.  On 11 May 1993, he enlisted in the RA and he served in an active duty status until he was honorably discharged on 10 May 1997.  He was credited with completing 4 years of active service this period.  

5.  On 11 May 1997, he enlisted in the U.S. Army Reserve.  On 15 June 2008, he was ordered to active duty.

6.  The applicant's MEB is not contained in the available records.

7.  On 14 October 2009, a PEB convened at Fort Lewis, WA and considered the applicant's condition of degenerative arthritis, left (dominant) thumb metacarpal phalangeal joint and right knee pain evaluated as degenerative arthritis.  He received a 10 percent (%) disability rating for each condition.  His other conditions listed as MEB diagnosis were considered by the PEB and were found not to be unfitting, not ratable, not compensable, or were determined to have met the retention standards by the Medical Treatment Facility (MTF).  The PEB determined that he was physically unfit and recommended a combined disability rating of 20%.  The board also recommended that he be separated with severance pay.  

8.  He initialed the PEB proceedings in block 13 (Election of Soldier) indicating "I concur and waive a formal hearing of my case."  He signed the form on 
19 October 2009.  Additionally, the counselor signed this form on the same date indicating that he had counseled the Soldier of the findings and recommendations of the PEB and explained the result of the findings and recommendations and his legal rights pertaining there to.  "The Soldier has made the election shown above."    

9.  On 30 October 2009, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) chapter 4, with disability severance pay.  He was credited with completing 17 years, 1 month, and 29 days of service.  He received $114,576.60 in disability severance pay.


10.  Army Regulation 635-40 states that the findings and recommendations of the informal PEB are recorded on DA Form 199 (PEB Proceedings).  Block 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations.  These include the following:

* Concurrence with the findings and recommendations and waiver of a formal hearing 
* Nonconcurrence with the findings and recommendations; submission of a rebuttal explaining the Soldier's reasons for nonconcurrence and waiver of a formal hearing
* Demand for a formal hearing with or without personal appearance
* Choice of counsel if a hearing is demanded
* Soldiers indicate their elections by checkmark in block 13 and sign and date the original and the MTF copies 

11.  The same regulation states the PEB liaison officer will counsel the Soldier and make him or her fully aware of the election options available, the processing procedures, and the benefits to which he/she will be entitled if separated or retired for physical disability.

12.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (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 in the Army’s rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Furthermore, unlike the U.S. 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.  The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows, on 19 October 2009, the applicant was found unfit for duty with a disability rating of 20% for degenerative arthritis of the left thumb and right knee pain.  He signed the PEB Proceedings concurring with the board's findings and waving a formal hearing.  There is no evidence and he has not provided any to show that his disability rating was incorrect; because he should have been medically retired.  

2.  The fact that his condition has worsened is not sufficient justification to conclude that he should have received a higher disability rating.  The VA has the authority to evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings whereas the Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

3.  Nevertheless, no medical evidence has been presented by the applicant to demonstrate an injustice in the disability ratings he received during his PEB.  In view of the evidence in this case, there is no basis for granting his 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 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)                                         AR20130017058



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ABCMR Record of Proceedings (cont)                                         AR20130017058



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