IN THE CASE OF:  

		BOARD DATE:  24 February 2015

		DOCKET NUMBER:  AR20140009008 


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 defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an increase in the applicant's disability rating.

2.  Counsel states the applicant should have been granted a higher rating for his back and additional ratings for his other medical conditions which existed prior to his discharge from active duty.  The only condition that was considered in his Medical Evaluation Board (MEB) was his back.  He asserts that all the applicant's fitting or unfitting conditions should have been considered by the MEB.  Specifically, the applicant believes he should have been granted a disability rating for the following conditions:  behavioral health including depression, anxiety, bi-polar, headaches; bilateral leg condition; bilateral foot condition; bilateral wrist condition; gastro-intestinal condition including gall bladder, surgical repair of deviated septum (during active duty) with residuals including sleep apnea which requires CPAP (continuous positive airway pressure).

3.  Counsel provides copies of the applicant's 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.  With prior Regular Army service, the applicant enlisted in the Michigan Army National Guard (MIARNG) on 22 March 1992.  He reenlisted in the MIARNG on 9 March 1997.  He held military occupational specialties (MOS) 13B (Field Artillery Cannoneer) and 11B (Infantryman).

3.  On 22 November 1999, he entered into a full-time National Guard Duty status.

4.  An MEB convened on 27 May 2004.  The DA Form 3947 (Medical Evaluation Board Proceedings) shows the applicant did not present any views in his own behalf.  This form further indicates the following:

	a. Item 13 (Diagnosis):  "Degenerative Disk Disease w/HNP without canal stenosis but with foraminal narrowing."  The approximate date of origin is listed as November 2001 and it was incurred while the applicant was entitled to base pay and did not exist prior to service.

	b.  In Item 14 the board recommended that the patient be referred to a physical evaluation board (PEB).

	c.  Item 16 shows the applicant did not desire to continue on active duty.

	d.  In item 24 an "X" indicated the applicant agreed with the board's findings and recommendation.

5.  A PEB was convened on 19 July 2004.  The DA Form 199 (PEB Proceedings) shows the applicant was found unfit for continued military service by reason of chronic low back pain.  The board recommended a disability rating of 10 percent and that the applicant be separated with severance pay. The applicant concurred and waived a formal hearing on his case.

6.  On 5 September 2004, he was honorably discharged for disability, with severance pay as a sergeant first class (SFC)/E-7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had completed a total of 9 years, 4 months, and 20 days of active duty service.
7.  His record contains:

	a.  DA Form 2166-7 (NCO Evaluation Report) (NCOER) for the period November 1999 through October 2000.  This NCOER shows he was rated "success" in Part IVc (Physical Fitness and Military Bearing) and received overall ratings of "Fully Capable" and "Successful."

	b.  DA Form 2166-8 (NCOER) for the period October 2001 through September 2002.  This NCOER shows overall ratings of "Fully Capable" and "Successful."  Part IVc shows "Needs Improvement (Some)" and the following bullet comments –

* "failed PT test"
* "is undergoing medical treatment to resolve physical restrictions disallowing APFT completion"

8.  In support of his application, he provides:

	a.  A DA Form 3349 (Physical Profile), dated 11 June 2004, showing he was placed on a permanent profile for low back pain.

	b.  Documents showing his Department of Veterans Affairs (VA) claims for compensation and/or pension.

	c.  VA Rating decision letter showing he was rated at 10 percent service-connected for degenerative joint and disc disease, lumbar spine, and 30 percent for bipolar disorder effective 6 September 2004.

	d.  Two "volumes" of medical records showing he was treated for various conditions during his service in the MIARNG and on active duty, including those listed in this petition. 

9.  Title 10, U.S. Code (USC), 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.  Title 10, USC, 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 percent.

10.  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.
11.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, a PEB rates all disabilities using the VA Schedule for Rating Disabilities.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

12.  Title 38, USC, 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 an error or injustice in the Army rating.  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.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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 Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability and/or social adjustment.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

2.  The available evidence shows the applicant was under medical care for several medical conditions; however, there is no evidence that any of the conditions, except for the low back pain, prevented him from performing his military duties.

3.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendations of the PEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, there is insufficient evidence 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 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)                                         AR20120003593



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ABCMR Record of Proceedings (cont)                                         AR20140009008



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