IN THE CASE OF:	  

		BOARD DATE:	  2 July 2014

		DOCKET NUMBER:  AR20130017875 


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 that his discharge with severance pay be changed to retirement by reason of permanent disability.

2.  The applicant states he believes that after 17 years of service he should receive a medical retirement with pay.  He initially received a 30 percent disability rating and was placed on the Temporary Disability Retired List (TDRL) and when he was subsequently discharged he received only a 10 percent disability rating with severance pay.  If his condition had improved so much he should have been allowed to continue to serve in the Regular Army for 2 or 3 years to qualify for retirement.  He had to pay his severance pay back in order to receive his Department of Veterans Affairs (VA) benefits.  His current service-connected VA rating is 60 percent. 

3.  The applicant provides a one-page letter explaining his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), and copies of orders placing him on and removing him from the TDRL.

 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 15 June 1973.  He completed his training and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 3 July 1981.

3.  On 8 February 1989, a Physical Evaluation Board (PEB) conducted at Walter Reed Army Medical Center, Washington, D.C. considered the applicant’s diagnosed conditions of chronic cervical muscle strain secondary to early degenerative disc disease and lumbosacral muscle strain secondary to early degenerative disc disease and found him unfit for duty.  The PEB recommended placement on the TDRL with a 30 percent disability rating and recommended reexamination during August 1990.

4. On 16 February 1989, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

5.  On 31 March 1989, the applicant was honorably retired by reason of physical disability – temporary and placed on the TDRL effective 1 April 1989.  He served 15 years, 9 months and 17 days of active service.

6.  On 9 October 1990, a PEB convened at Fort Gordon, Georgia and determined the applicant’s medical condition had stabilized for rating purposes. The PEB determined that his condition warranted a 10 percent service-connected disability rating.  The PEB recommended discharge with severance pay.

7.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case on 29 October 1990.

8.  The applicant was removed from the TDRL and honorably discharged on 6 November 1990 due to disability with severance pay.

9.   Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander will provide a thorough and prompt evaluation when a Soldier's medical condition becomes questionable in respect to physical ability to perform duty; will appoint a PEB liaison officer to counsel Soldiers undergoing physical disability processing; and will ensure MEB proceedings referred to a PEB are complete, accurate, and fully documented.  It also provides for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier’s disability ratings.

10.  Title 38, U.S. Code, sections 310 and 331, permits 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

11.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her 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 PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

12.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case shows the applicant’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities (VASRD) and his separation with severance pay was in compliance with applicable laws and regulations in effect at the time.  

2.  The applicant was found unfit for duty and assigned a combined disability rating of 10 percent for his unfitting conditions as they existed at the time of his formal PEB hearing in 1990.   Department of the Army disability decisions are 
based on observations and determinations existing at the time of the PEB hearing.  Department of the Army ratings become effective on the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show he was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB were incorrect.  In fact, he did not request a formal PEB hearing and concurred with the recommendation as written in 1990.  

4.  The fact that the VA, in its discretion, may have awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Army.  

5.  In view of the foregoing, there is an insufficient basis for granting the applicant's 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)                                         AR20130017875



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ABCMR Record of Proceedings (cont)                                         AR20130017875



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