IN THE CASE OF: 

		BOARD DATE:	  23 July 2014

		DOCKET NUMBER:  AR20130017467 


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 entitlement to a physical disability retirement.

2.  The applicant states during his deployment to Kandahar, Afghanistan in support of Operation Enduring Freedom 10-11, he suffered injuries to his neck, right knee, and lumbar and thoracic spine.  He was placed on a permanent profile in November of 2011 and was completing pain management sessions as prescribed by his brigade surgeon until his separation from active duty.  He was advised by his Brigade Commander and Brigade Surgeon to request a Medical Evaluation Board (MEB); however, due to his established timeline of separation, he decided to apply to the Army Physical Disability Review Board (APDRB) after his release from active duty.  In March 2013, he received a formal rating letter from the Department of Veterans Affairs (VA) which granted him an 80 percent disability rating. 

3.  The applicant provides copies his DD Form 214 (Certificate of Release or Discharge from Active Duty), 174 pages of medical documents, and page 2 of the Army Review Boards Agency information pages referencing the APDRB. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve as a cadet on 3 February 2005 and received a commission on 9 May 2008.

2.  He entered active duty on 10 June 2008 as an Engineer Branch officer and served in Afghanistan from 20 July 2010 through 30 June 2011.

3.  The medical records provided by the applicant show treatment for –

* vertebral fusion of T12 – L1
* minor disc bulging at L5 – S1
* history of stress fractures of the left foot
* folliculitis with lesions anterior thighs and back
* benign skin neoplasm on his trunk and right calf
* male erectile dysfunction
* knee joint pain 
* acne
* complaints of difficulty focusing 

4.  In 2008 the applicant sustained a compression fracture of the L1 while skiing and underwent an L1 vertebroectomy with fusion of T12 – L2.

5.  On a medical evaluation, dated 25 February 2009, it was reported the applicant was progressing well following his surgery.

6.  In August 2010, the applicant complained of low back pain at the site of his surgery.  He reported he had not had any problems with his back until the rigors of his position in Afghanistan and the daily wear of a full kit caused him to again experience low back pain.

7.  The applicant was afforded physical therapy and seen on a regular basis for pain management including lumbar traction therapy.

8.  On 6 January 2012, the applicant reported exercise increased the pain in his low back with manual traction relieving the pressure.  He noted that his current position required him to sit for extended periods which aggravated his back pain.  He requested to resume physical therapy for his back pain, reporting he had stopped going to therapy due to a lack of time because of his job requirements.

9.  During a 6 February 2012 examination, the applicant reported he had not been having any problems following the 2008 skiing accident back surgery until he was stationed in Afghanistan.  The pain in his back returned due to the physical stresses necessary to perform his duties while wearing an 80+ pound pack.  Pain management was recommended with possible epidural steroid injection therapy.

10.  The applicant underwent a separation physical examination on 26 April 2012 with complaints of low back pain, knee pain, male erectile dysfunction, and acne.  The attending physician reported no abnormal findings were found for his knee pain or of the lumbar/lumbosacral spine.  He did find mild facial acne, pain on full range of motion of the thoracolumbar spine, and tenderness on palpitation of the sacroiliac joint left of the S1 joint.  A profile was declined and he was released without limitations.

11.  An associated 15 May 2012 Radiologic Examination Report found – 

* a history of stress fractures in his foot with no fracture found at that time
* screws at T12 and L1, compression deformity at L1 consistent with his history of a compression fracture, no evidence of central canal stenosis, small disc bulge at L5-S1

12.  The available records do not show treatment for a neck injury or that he was given any permanent profiles.

13.  On the applicant's Officer Evaluation Report (OER) ending 13 July 2012, his senior rater marked the applicant as best qualified.  The senior rater stated the applicant has the potential to serve as a career officer and would make an outstanding engineer company commander.  He recommended the applicant for below the zone promotion to major.

14.  The applicant was discharged from active duty on 11 September 2012 in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-5 with a narrative reason of Miscellaneous/General Reasons.  His awards are listed as the Bronze Star Medal, Army Commendation Medal, Army Achievement Medal, National Defense Service Medal, Afghanistan Campaign Medal with two bronze service stars, Global War On Terrorism Service Medal, Sapper Tab, Army Service Ribbon, Overseas Service Ribbon, NATO Medal, Combat Action Badge, Parachutist Badge, and the Air Assault Badge.

15.  The Army Physical Disability Review Board (APDRB) informational pages states a service member or former member of the Army who was separated or retired from active duty within the past 15 years with a physical disability separation without pay for physical disability (emphasis added) may be eligible to apply to this board.  The APDRB reviews decisions made by a prior board.  It has 
the same powers as the board (retiring board, medical board, other disposition board) that originally reviewed but denied the disability claim upon separation or retirement.

16.  Title 10, US Code, Chapter 61 sets forth provisions for retirement or separation due to a physical disability including for personnel receiving medical retirement with a 30% or greater disability rating.

17.  Army Regulation 40-501, paragraph 3-3b(1) 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.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers.  It provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; but rather it is provided disability separation or retirement to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was not separated from active duty with a physical disability separation; therefore, he does not meet the requirements for review by the APDRB. 

2.  By the applicant's own admission he was told he should request an MEB but he elected to be separated from active duty believing he could apply directly to the APDRB after his separation from active duty.

3.  The award of a VA compensation rating does not mandate change of, nor demonstrate an inequity in a military disability rating.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

4.  The applicant clearly had some medical problems while on active duty.  However, he has not provided any evidence he was unable to perform his duties. Further, on his last OER his senior rater rated as the best qualified and recommended for him for below the zone promotion and stated he would make an outstanding Engineer Company Commander.  This evaluation clearly indicates he was not suffering from any medical condition that interfered with the performance of his assigned duties. 

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)                                         AR20130017467



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ABCMR Record of Proceedings (cont)                                         AR20130017467



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