IN THE CASE OF: 

		BOARD DATE:	    29 July 2014

		DOCKET NUMBER:  AR20130021229 


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 and that he be retired by reason of permanent disability. 

2.  The applicant states, in effect, that he should have been retired by reason of permanent disability because he has been having more and more problems with his lower back, left knee, and post-traumatic stress disorder (PTSD).  He has problems being around people and his kids.  The problem with his back has stopped him from working at the Department of Veterans Affairs (VA) hospital and moving around.  When his back went out in 2011, they found three fractured discs in his back that have been there since 2002 as a result of being hit by a drunk driver while riding as a passenger in a car.  He complained about his back and left knee and now is unable to work or do anything.

3.  The applicant provides copies of his VA Rating Decision and medical records.

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 23 October 2002 for a period of 4 years.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training as a metal worker at Aberdeen Proving Ground, Maryland and was transferred to Fort Carson, Colorado for his first and only duty assignment.  

3.  On 1 February 2005, a medical evaluation board (MEB) convened at Fort Carson and determined that he had the following conditions/defects:

* left knee; chronic left knee pain
* recurrent low back pain
* depressive disorder, not otherwise specified
* left shoulder impingement, intermittently symptomatic
* pes planus

4.  The MEB recommended that he be referred to a physical evaluation board (PEB) and the applicant indicated that he did not desire to continue on active duty.  He concurred with the findings and recommendations of the MEB.

5.  On 15 February 2005, a PEB convened at Fort Lewis, Washington and determined that the applicant’s left knee pain was unfitting and assigned him a 0% disability rating.  The PEB also determined that his remaining conditions were not unfitting and not ratable.  The PEB recommended that he be separated with severance pay.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case. 

6.  On 7 March 2005, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), due to disability with severance pay.  He had served 2 years, 4 months, and 15 days of active service.

7.  The VA Rating Decision provided by the applicant shows that in 2012 he was granted an 80% service-connected disability rating and was being paid at the 100% rate due to being unemployable.  

8.  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.  

9.  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.

10.  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, it appears 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.  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 but declined to do so.
3.  Accordingly, 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)                                         AR20130021229





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130021229



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1