IN THE CASE OF:	  

		BOARD DATE:	  16 December 2014

		DOCKET NUMBER:  AR20140007315 


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 correction of his military records to show he was retired due to physical disability.

2.  The applicant states that he believes when he was in the Warrior Transition Unit at Fort Bliss, TX, the doctors overlooked some of his medical conditions that were later rated by the Department of Veterans Affairs (VA) as being service connected.  The VA has recently increased his combined disability rating to 
80 percent which is 50 percent for sleep apnea and 30 percent for Post Traumatic Stress Disorder (PTSD).

3.  The applicant provides copies of:

* DD Form 2807 (Medical History Statement), version 2001, page 2 only, undated
* DD Form 2808 (Medical Examination) version 2003, pages 2 and 3 only, dated 16 October 2006
* Standard Form 600 (Chronological Record of Medical Care), dated between 19 February 2008 and 1 November 2013 (9 pages)
* VA Rating Decision, dated 19 March 2014
* VA Decision for service connected compensation, dated 7 April 2014
* VA Form 21-0960P-3 (Review PTSD Disability Benefits Questionnaire), dated 17 May 2014 (6 pages)



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 26 February 1997.  He completed his initial training as an artillery mechanic.  He was promoted to sergeant, pay grade E-5, effective 1 August 1999.

3.  The available records do not contain a copy of the applicant's medical evaluation board (MEB) proceedings.

4.  The applicant's records do contain his DA Form 199 which was approved on 
6 June 2008 showing:

	a.  A Physical Evaluation Board (PEB) convened on 29 May 2008 to consider the applicant's medical condition.

	b.  The PEB found him physically unfit to perform the duties of a Soldier of his rank and primary specialty.  This finding was based on his intolerance of strenuous exertion, sleep deprivation and stress, which triggered headaches.  It was rated as 10-percent disabling in accordance with VA Schedule for Rating Disabilities code 8100 (migraine headaches) for prostrating attacks occurring an average of once every 2 months.  The PEB recommended the applicant's separation with severance pay, if otherwise qualified.

	c.  The applicant concurred with the PEB findings and recommendations.  He waived a formal hearing.

	d.  The PEB Liaison Officer indicated he informed the applicant of the findings and recommendations and explained his legal rights.

5.  On 2 July 2008, the applicant was discharged from active duty due to a physical disability with entitlement to severance pay.
6.  On 19 March 2014, the VA informed the applicant of its rating decision wherein it granted the applicant a service connection for sleep apnea rated at 
50 percent effective 3 January 2012 because he now required the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine.  The VA also reevaluated the applicant's depressive disorder as being PTSD and increased his disability rating from 10 percent to 30 percent, effective 19 April 2013 because of intermittent periods of inability to perform occupational tasks.  He was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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.

	a.  It provides for MEB's, 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).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

	b.  It states 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.

8.  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% and Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

9.  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 higher VA rating does not establish error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was retired due to physical disability with a combined disability rating of 
80 percent.

2.  The evidence shows the applicant agreed with the findings of the PEB which found his migraine headaches to be unfitting and rated at 10-percent disabling.  He was accordingly discharged with severance pay.

3.  The applicant contends that the doctors at Fort Bliss, TX may have overlooked some of his medical conditions.  It appears the bases for his contention is the VA rating decision made several years after his discharge.

4.  The applicant has not made any argument that convincingly shows what the Army did was wrong.  He has not shown any injustice or error in connection with the circumstances of his discharge.

5.  An award of a VA rating does not establish entitlement to medical retirement or disability separation from the Army.  Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty awards ratings because a medical condition is related to service (service-connected) and affects the individual's civilian employability.  Furthermore, 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 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.

6.  In view of the above, the applicant's request should be denied.




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)                                         AR20140007315



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ABCMR Record of Proceedings (cont)                                         AR20140007315



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