IN THE CASE OF:	  

		BOARD DATE:	  12 August 2014

		DOCKET NUMBER:  AR20130021190 


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 all of his service-connected disabilities be considered to determine if he was eligible for a military retirement instead of a discharge with a 10% disability rating.

2.  The applicant states that his pre-discharge exams show that he had the following disabilities:  costochondritis – 10%, asthma – 30%, gastroesophageal reflux – 10%, degenerative disc disease – 20%, and ischemia – 10%.  However, only costochondritis was rated for discharge purposes even though his commander noted that lung and heart problems made him non-deployable and unfit for duty.

3.  The applicant provides copies of his Department of Veterans Affairs (VA) Rating Decision (incomplete copy), physical profiles, and letters from his commander and a physician.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be granted permanent disability retirement with a disability rating of 40% or more. 

2.  Counsel states, in effect, that the applicant had several disabilities at the time of his discharge; however, the Physical Evaluation Board (PEB) did not consider all of his disabilities and discharged him with a 10% disability rating.  However, the letters from his commander and attending physician attest to the fact that the applicant was unfit for duty due to chronic breathing problems and that he was receiving intensive treatment for ongoing pulmonary and chest problems.  Counsel goes on to state that the PEB must follow the Veterans Affairs Schedule for Rating Disabilities (VASRD) and the VA has rated the applicant at 70% for service-connected disabilities. 

3.  Counsel provides documents signed by the applicant appointing her as counsel.

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’s records, though somewhat incomplete, show that he enlisted in the Regular Army on 13 November 2000 for training as a wheel vehicle mechanic.  He completed his training at Fort Jackson, South Carolina and was transferred to Fort Sill, Oklahoma for his first and only duty assignment.  

3.  He was advanced to pay grade E-4 on 13 November 2002 and deployed to Iraq during the period 20030407 – 20030519 (1 month and 13 days).  He reenlisted on 25 February 2004 for a period of 4 years.

4.  On 7 March 2006, he was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(3), due to disability with severance pay.  He had served 5 years, 3 months, and 28 days of active service and he received severance pay in the amount of $19,359.00.

5.  A review of his official records failed to reveal copies of his medical evaluation board (MEB) or PEB proceedings.

6.  The profiles provided by the applicant indicate that he was on temporary profile while being evaluated by a cardiologist and MEB.  He also provides documents showing he was medically evacuated from Iraq for an appendectomy and that he was evaluated for recurrent chest pain.
7.  The statement provided by the applicant is a copy of the memorandum provided by the commander to the President of the PEB on 26 August 2005 which indicates the applicant was incapable of performing his duties as a mechanic due to his chronic breathing problems. 

8.  The statement provided by the applicant from his physician is dated 21 April 2005 and indicates that the applicant was non-deployable and required extensive evaluation and intervention.

9.  The VA Rating Decision provided by the applicant is a 2010 rating decision and it indicates that the applicant was granted a 70% service connection for the following conditions:  

* Asthma – 30%
* Degenerative disc disease with disc bulge – 20%
* Right bundle branch block with ischemia – 10%
* Costochondritis – 0%
* Healed Nasal Fracture with Allergic Rhinitis, Maxillary and Frontal Sinusitis – 0%
* Residual Scar Right Lower Quadrant – 0%
* Erectile Dysfunction Associated with Left Epididymitis – 0%
* Left Epididymitis – 0%

10.  The VA Rating Decision also determined the following conditions were not service connected and not subject to compensation:

* Chronic obstructive pulmonary disease
* Sleep Apnea associated with healed nasal fracture with allergic rhinitis, maxillary and frontal sinusitis
* Hypertension
* Traumatic Brain Injury 

11.  There is no evidence in the available records showing what conditions the applicant was evaluated or discharged for and the applicant has not provided evidence to show what conditions were evaluated.

12.  Army Regulation 635-40 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.  

13.  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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and supporting documents have been carefully considered; however, without copies of the MEB/PEB Proceedings and the Narrative Summary which are not present in the available records and have not been provided by the applicant, it must be presumed that his separation by reason of disability with severance pay was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

2.  Likewise, it must be presumed that the applicant’s conditions were properly rated as they existed at the time the PEB convened and the applicant was afforded the opportunity to appeal the decision of the PEB.
3.  Therefore, in the absence of evidence to the contrary, there appears to be no error or injustice in his case and no basis to grant his request to be retired by reason of permanent disability 8 years after the fact.

4.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20130021190



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ABCMR Record of Proceedings (cont)                                         AR20130021190



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