BOARD DATE:	  30 December 2014

		DOCKET NUMBER:  AR20140002894 


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, correction of his records to show he retired for length of service (non-Regular retirement) instead of disability or an increase in the percentage of his Army disability rating to 60 percent.

2.  The applicant states:

	a.  He was determined to be medically unfit for duty due to service-related injuries.

	b.  Upon conclusion of his medical board, there were several medical issues that were not included in his informal physical evaluation board (PEB) recommendation.  He was initially given a 20-percent permanent disability rating and he subsequently requested a formal PEB.

	c.  After providing additional medical evidence not originally considered in his initial PEB, his PEB counsel provided only one of the additional medical issues that had not been included in his initial PEB.  He was told by his PEB counsel that the additional medical documentation was enough for at least an additional 10-percent disability rating.

	d.  His PEB counsel also told him that his retired pay based on his years of service (25 years and 9 months) with the 30-percent disability rating is better than pursuing a higher disability rating because with his years of service, his retired pay would equate to 64.375 percent of his base pay or $4,474.06 per month.  He is currently being paid based on the 30-percent disability rating, which is $2,085 per month.

	e.  He has been in contact with the retired pay office and finally after three attempts they replied that he needed to contact the U.S. Army Human Resources Command (HRC).  He has made two attempts to contact HRC with no response.

	f.  He is potentially in need of more surgeries and he contacted several law firms for legal advice.  They all agree that he has a case, but they have different philosophies on how to implement and proceed towards the forthcoming legal action.  They also agree that he needs to ensure that he has given the Army every opportunity to correct this problem before asking for additional legal advice and determining what legal action he should take.

	g.  He is willing to accept the length of service retirement he is entitled to under Title 10, U.S. Code, chapter 61, section 1201.  If the Board feels he is not entitled to this compensation, he would accept a 60-percent permanent disability rating as follows:

* 30 percent for low back injury (lumbar spondylosis)
* 20 percent for radiculopathy and degenerative disc disease (due to reduced range of motion both forward and lateral that two surgeries have been unable to improve)
* 20 percent for a separated left sacroiliac joint
* 20 percent for cervical spondylosis and radiculopathy
* 10 percent for the torn ligaments and tendons in his left ankle
* 10 percent for unrepaired torn medial collateral ligaments in both knees (were not repaired before entering the medical board process)

	h.  He believes he is not the only Soldier in this position.  He is only asking for the compensation that he is entitled to receive, no more, but definitely no less.  He is currently receiving far less.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a commissioned officer in the Army National Guard (ARNG) on 30 July 1988.  On 1 July 1993, he was separated from the ARNG and transferred to the U.S. Army Reserve.  He entered active duty on      1 October 2008.

2.  On 2 December 2011, an informal PEB convened and found the applicant unfit for further military service due his medical issues.  The PEB rated the applicant's medically-unacceptable conditions under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) as follows:

VASRD Code
Condition
Percentage
5242
degenerative arthritis of the thoracolumbar spine
10
5099/5003
degenerative arthritis of the dominant right shoulder
10
8799/8720
left sciatic neuralgia
10



3.  The PEB also considered several other medical conditions (ankle pain, hearing loss, sleep apnea, hypertension, Raynaud’s Phenomenon, hyperlipidemia, esophageal reflux, allergic rhinitis, cervicalgia, cervical radiculopathy, knee pain, chronic tinnitus, pes cavus, and hemorrhoids) but did not find those conditions unfitting.

4.  The PEB recommended a combined rating of 30 percent and permanent disability retirement.

5.  On 2 December 2011, he acknowledged he had been advised of the findings and recommendation of the PEB and he had received a full explanation of the results of the findings and recommendation and his legal rights pertaining thereto.  He concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

6.  Headquarters, U.S. Army Garrison, Fort Sill, Orders 069-1304, dated 9 March 2012, directed his retirement for permanent physical disability effective 19 April 2012.  His percentage of disability was 30.  These orders show he had 25 year, 9 months, and 17 days of service for basic pay but 11 years, 11 months, and 18 days of section 1405 service.

7.  There is no evidence in the applicant's available records that shows he was suffering from any additional unfitting medical conditions at the time of his retirement.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for medical evaluation boards which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it 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.

	a.  Paragraph 3-1 provides that the mere presence of impairment does not in 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 reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

	b.  Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  Ratings are assigned from the VASRD.  The fact that a Soldier has a condition listed under the VASRD does not equate to a finding of physical unfitness.  An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty.  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.

9.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below.  These medical conditions and physical defects, individually or in combination:

* significantly limit or interfere with the Soldier's performance of duties
* may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring
* may compromise the health or well-being of other Soldiers
* may prejudice the best interests of the government if the individuals were to remain in military service

10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.

11.  Title 10, U.S. Code, section 1209 (Transfer to Inactive Status List Instead of Separation) allows Soldiers who received a disability rating of less than 30 percent and have at least 20 qualifying years for retirement for non-Regular service the option of accepting discharge with disability severance pay and forfeiting retirement for non-Regular service or to request transfer to the Retired Reserve and receive retired pay at age 60.

12.  Title 10, U.S. Code, chapter 61 (Retirement or Separation for Physical Disability), does not contain provisions allowing a Soldier who receives a disability rating of 30 percent or higher the option of electing retirement for non-Regular service and receipt of retired pay at age 60 instead of physical disability retirement.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant sustained various injuries and/or illnesses that warranted his entry into the PDES.  He underwent a PEB and the PEB found the medical conditions prevented him from reasonably performing the duties required of his grade and military specialty.

2.  The PEB also considered many other medical conditions, but did not find those conditions to be unfitting and therefore not ratable.  The PEB rated his disabilities at 30 percent and recommended his permanent disability retirement.  He was counseled and he agreed with the findings and recommendations and he waived his right to a formal hearing.

3.  The applicant did not provide medical evidence to support a diagnosis of any other condition that failed retention standards and/or was unfitting at the time of his separation.

4.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation.  The applicant was properly rated as 
30-percent disabled for his ratable conditions.  There is no evidence to support rating any other medical condition(s).  His physical disability evaluation was conducted in accordance with the law and regulations.  There is no evidence of an error or an injustice in his separation processing and/or his assigned disability rating.

5.  The applicant may have been misinformed concerning his retired pay; however, there are no provisions of law authorizing a Soldier who receives a minimum 30-percent disability rating to receive anything less than a disability retirement.  Therefore, it appears he is receiving his retired pay in accordance with the applicable laws.

6.  In view of the foregoing, there is no basis to grant the 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 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)                                         AR20140002894



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ABCMR Record of Proceedings (cont)                                         AR20140002894



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