IN THE CASE OF
BOARD DATE: 8 July 2014
DOCKET NUMBER: AR20130020052
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 be changed to a retirement by reason of permanent disability (medical discharge).
2. The applicant states he was discharged due to his medical problems and should have been medically retired.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), orders, Physical Disability Evaluation System documents, Line of Duty Investigation, and medical progress notes.
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 was serving in the Alabama Army National Guard in the pay grade of E-7 when he was ordered to active duty on 15 July 2005 in support of Operation Enduring Freedom. He deployed to Iraq/Kuwait during the period 11 September 2005 to 8 June 2006.
3. On 22 January 2007, a Physical Evaluation Board (PEB) convened at Fort Lewis, Washington to evaluate his diagnosed condition of bilateral advanced carpal tunnel syndrome. The PEB determined that his unfitting condition existed prior to service (EPTS) and recommended that he be separated from the service without severance pay.
4. Although not indicated in the available record, it appears that the applicant did not agree with the findings and recommendation of the PEB because he was granted a formal hearing at Fort Lewis on 28 February 2007.
5. After reviewing the available evidence, the formal PEB hearing determined that the applicant should be granted a 10% service-connected disability rating for service aggravation of his condition while deployed and recommended that he be separated from the service with severance pay.
6. The applicant requested that he be granted Non-Disability Retired Pay at Age 60 in lieu of severance pay and his request was approved by the U.S. Army Human Resources Command (HRC) on 6 March 2007.
7. On 30 April 2007, he was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-40, paragraph 4-24b(5), due to disability (other) and was transferred to the Retired Reserve effective 1 May 2007. Subsequently, the Alabama Army National Guard discharged him and also transferred him to the Retired Reserve.
8. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30% disabling.
9. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.
10. Army Regulation 635-40 states disability compensation is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. This regulation also provides for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings.
11. 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. An award of a VA rating does not establish error or injustice on the part of the Army. 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 affects the individual's employability.
12. The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on 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 a service-connected disability and may even initially assign a higher rating. The VA's ratings are based on 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.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention and supporting documents have been noted; however, he has failed to show through the evidence submitted with his application and the evidence of record that he was not properly evaluated and rated by the PEB.
2. The applicant received a 10 percent service-connected disability rating and was offered separation with severance pay. However, the applicant elected to decline severance pay in favor of being transferred to the Retired Reserve in order to receive Non-Disability Retired Pay at Age 60.
3. In the absence of medical evidence to the contrary, it appears that he was properly evaluated and transferred to the Retired Reserve in accordance
with the applicable laws and regulations with no indication of any violations of the applicants rights.
4. Accordingly, there appears to be no basis to grant his request for medical retirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ___X___ ___X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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) AR20130020052
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ABCMR Record of Proceedings (cont) AR20130020052
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