IN THE CASE OF: 

		BOARD DATE:	    19 August 2014

		DOCKET NUMBER:  AR20130021478 


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 by reason of disability with severance pay non-combat (enhanced) be changed to retirement by reason of permanent disability. 

2.  The applicant states, in effect, that all of his conditions should have been rated under the Physical Disability Evaluation Board (PDES) and he should have been rated as being 100% disabled. 

3.  The applicant provides copies of his medical treatment records, Medical Evaluation Board (MEB) proceedings, Physical Evaluation Board (PEB) proceedings, Department of Veterans Affairs (VA) Rating Decision, Applicant’s Guide to Applying to the ABCMR, Power of Attorney, and his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the findings of the MEB and PEB be set aside and the applicant be granted a new hearing to properly consider all of his service-connected conditions or, as an alternative, that he be retired by reason of permanent disability with at least a 100% service-connected disability rating. 

2.  Counsel states, in effect, that the MEB did not properly evaluate all of the applicant’s service-connected conditions.  Given his condition of obsessive compulsive disorder (OCD), he was legally incompetent to understand the proceedings of the PDES and should have been afforded legal assistance.  The PDES evaluations inappropriately granted him a 20% service-connected disability rating for injuries to his lumbar L4-4 and L4-5 and completely ignored injuries to his lumbosacral spine and extensor, sacral vertebra, OCD, and tenor left 5th digit.  The applicant was not given a fair hearing and was not advised of his right to be represented by legal counsel or to appeal the board’s decisions.  Additionally, he was not mentally competent to understand what was happening.

3.  Counsel provides a two-page brief explaining his position along with a seven-page supplemental brief describing in detail his position.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 October 2010 for a period of 3 years and 21 weeks and training as an infantryman.  He completed his one-station unit training at Fort Benning, Georgia and was transferred to Fort Drum, New York for his first and only assignment.

2.  On 10 April 2013, an MEB convened at Fort Drum to evaluate the applicant’s diagnosed conditions of (1) lumbar degenerative disc disease, (2) history of left 5th DIP extensor tendon injury with residual pain, loss of range of motion, (3) OCD, and (4) history of Behcet’s Disease.  The MEB found that his condition of lumbar degenerative disc disease failed to meet retention standards and that conditions 2, 3 and 4 met retention standards.  The MEB recommended that he be referred to a PEB.  The applicant concurred with the findings and recommendations of the MEB. 

3.  On 2 May 2013, an informal PEB was convened at the National Capitol Region and the applicant’s case was adjudicated as part of the Integrated Disability Evaluation System (IDES) under the 19 December 2011 Policy and Procedure Directive-Type Memorandum (DTM) 11-015.  The PEB determined that his condition of lumbar degenerative disc disease was unfitting and assigned him a 20% service-connected disability rating.  The PEB also determined that his conditions of history of left 5th DIP extensor tendon injury with residual pain, loss of range of motion and history of Behcet’s Disease were not unfitting and that his conditions of OCD did not constitute a physical disability and was not compensable. On 6 May 2013, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.  He also did not request reconsideration of his VA ratings which were granted at the same time as the PEB.  The VA granted him a combined rating of 40%.  The Physical Evaluation Board Liaison Officer (PEBLO) counseled the applicant and informed him that counsel was available through the ombudsman and provided him phone numbers for himself and the ombudsman.

4.  On 8 May 2013, the applicant submitted a request to be separated for disability with severance pay. 

5.  On 5 July 2013, he was honorably discharged under the provisions of Army Regulation 635-40, chapter 4, by reason of disability, severance pay, non-combat (enhanced).  He had served 2 years, 8 months, and 24 days of active service and received $12,486.60 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.  It also states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

7.  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.

8.  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.

9.  There is a difference between the VA and the Army disability systems.  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 PEB 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.  The applicant’s contentions and supporting documents have been carefully considered.  However, it appears 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.  Counsel’s contention that the applicant was not mentally responsible to participate in the PDES proceedings has also been noted and found to lack merit.  Counsel simply has not provided sufficient evidence to support his contention and absent such evidence, it must be presumed that the applicant  was mentally responsible.  In any event, there is no evidence present that suggest that the outcome would have been different.  

4.  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)                                         AR20130021478





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ABCMR Record of Proceedings (cont)                                         AR20130021478



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