IN THE CASE OF:	  

		BOARD DATE:	  5 June 2014

		DOCKET NUMBER:  AR20130017561 


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, in effect, that his discharge be voided, that his disability rating be increased, and that he be retired by reason of permanent disability.

2.  The applicant states he believes he should have been medically retired instead of being discharged.

3.  The applicant provides copies of his medical records, a copy of his Medical Evaluation Board (MEB) Proceedings, his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his DA Form 2-1 (Personnel Qualification Record).

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 initially enlisted in the Regular Army on 6 January 1989.  He completed his training, deployed to Southwest Asia (SWA) during the period 900822 – 910328 and on 1 February 1993 he was honorably released from active duty due to the expiration of his term of service (ETS).  He had served
4 years of active service.

3.  On 6 January 1998, he again enlisted in the Regular Army.  On 24 March 1999 a MEB was convened at Fort Bragg, North Carolina that determined his condition of chronic bilateral knee pain with chronic right patellar tendonitis should be referred to a Physical Evaluation Board (PEB).  The applicant agreed with the findings and recommendation of the MEB.

4.  The applicant’s records do not contain of copy of his PEB and the applicant has not provided a copy.  His MEB Narrative Summary is not available.

5.  He served until he was honorably discharged due to disability with severance pay on 22 September 1999.  He had served 1 year, 8 months and 17 days of active service during his current enlistment and was given a 10 percent disability rating and $17,823.60 in severance pay benefits.

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating.  

7.  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 VA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  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.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.  Furthermore, 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.  The 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.

8.  There is a difference between the VA and the Army disability systems.  While both the VA and the Army use the VA Schedule for Rating Disabilities (VASRD) to determine percentage ratings, not all of the general policies set forth in the VASRD apply to the Army; thus there are sometimes differences in ratings. The Army's determination of a Soldier's fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the physical evaluation board hearing.  The VA may find a Soldier unfit by reason of service connected disability and may even initially assign a higher rating.  VA ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending upon the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of the applicant’s PEB proceedings and MEB Narrative Summary, it must be presumed that the applicant’s separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

2.  Accordingly, it appears that his discharge and percentage of disability directed were appropriate considering, all of the available facts of the case.

3.  Absent evidence to show that he was denied his due process rights and that he was not afforded proper medical processing at the time of his separation, there appears to be no basis to grant his request. 

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)                                         AR20130017561



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ABCMR Record of Proceedings (cont)                                         AR20130017561



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