IN THE CASE OF:  	  

		BOARD DATE:  9 September 2014	  

		DOCKET NUMBER:  AR20130022285 


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 his discharge with severance pay be changed to disability retirement.

2.  The applicant states he was discharged from the Army with a 10 percent (%) physical disability rating.  His disabilities at the time consisted of osteoarthritis with heel bone spurring, hearing loss, hypertension, and esophageal reflux.  He disagreed with the 10% rating and requested a Medical Evaluation Board (MEB) review.  The MEB continued his disability rating at 10%.  On 1 July 1989, he was awarded a 30% disability rating by the Department of Veterans Affairs (VA). After years of requesting a re-evaluation of his disabilities the VA increased his rating to 80%.  It is his belief that he should have been awarded a rating of 30% or higher, due to the debilitating factors that were present during his enlistment and at the time of his discharge.  

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 30 June 1989
* pages 1 and 2 of a VA Rating Decision, dated 14 November 2013 

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.  On 12 August 1983, he enlisted in the U.S. Army Reserve (USAR) for 6 years. On 30 April 1985, he enlisted in the USAR Delayed Entry/Enlistment Program (DEP).

3.  On 21 May 1985, he enlisted in the Regular Army for 3 years.  On 15 January 1988, he immediately reenlisted for 2 years.

4.  The applicant's service medical records, including the proceedings from his MEB and the findings and recommendation from his Physical Evaluation Board (PEB), were not available for review.

5.  On 26 May 1989, the Commander, U.S. Total Army Personnel Command (now known as the U.S. Army Human Resources Command) directed the applicant be discharged with a disability rating of 10 percent.

6.  On 30 June 1989, the applicant was discharged by reason of physical disability with severance pay.  

7.  The VA Rating Decision dated 14 November 2013 which he provided was based on his claim for an increase received on 13 April 2012.  His disabilities were rated as follows:

Disability

Rating
Osteoarthritis, right foot, chronic active, severe, involving the subtalar, talo-navicular and calcan-cuboid joints, associated with flexible flat foot and small heel spur

30% from
18 July 2000
Osteoarthritis, left foot, chronic active, severe, involving the subtalar, talo-navicular and calcan-cuboid joints, associated with flexible flat foot and small heel spur

30% from 
18 July 2000
Bilateral subtalar coalition with spurring and osteoarthritis

20% from 1 July 1989 to 18 July 2000
Limitation of motion of the right ankle due to chronic severe osteoarthritis of the subtalar, talo-navicular and calcaneo-cuboid joints

20% from 
18 July 2000
Limitation of motion of the left ankle due to chronic severe osteoarthritis of the subtalar, talo-navular and calcaneo-cuboid joints

20% from
18 July 2000
Hypertension

10% from 1 July 1989
Allergic rhinitis (claimed as respiratory condition with chronic cough)

10% from
21 December 1999
Bilateral sensorineural hearing loss
10% from 
26 March 2009
Tinnitus
10% from
6 September 2012
Esophageal reflux

0% from 1 July 1989
Hypertensive retinopathy stage 1 associated with hypertension
0% from
3 December 2009
8.  He had a combined VA rating of 30% from 1 July 1999, 40% from 
21 December 1999, and 80% from 18 July 2000.

9.  Army Regulation 635-40 provides that a Soldier may be separated with severance pay if the Soldier's disability is rated less than 30%, if the Soldier has less than 20 years of service as defined in Title 10 U.S. Code 1208, and if the Soldier's disability occurred in the line of duty and is the proximate result of performing active duty.

10.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.


11.  Title 38, U.S. Code, 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.  

DISCUSSION AND CONCLUSIONS:

1.  In order for the applicant to be discharged with severance pay he would have been found not be medically qualified to perform his duties or he did not meet the retention criteria for one or more medical conditions evaluated by an MEB and referral to a PEB.  

2.  The PEB had to have found the applicant was unfit for duty for one or more of the medical condition(s) referred by the MEB, it was determined the applicant's combined disability rating was less than 30%, and he was separated with severance pay.  

3.  The MEB proceedings and the PEB findings and recommendation were not available for review.  Therefore, the medical conditions referred to the PEB by the MEB and found to be unfitting by the PEB are unknown.  

4.  In the absence of evidence to the contrary it must be presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the disability separation process.  

5.  The VA awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  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.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

6.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different combined disability rating.  Therefore, an award of a higher VA rating does not establish error or injustice in the Army rating. 
7.  In view of the above, there is an insufficient basis to grant relief in this case.

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)                                         AR20130022285



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ABCMR Record of Proceedings (cont)                                         AR20130022285



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