IN THE CASE OF:    

		BOARD DATE:  12 March 2015	  

		DOCKET NUMBER:  AR20140009833 


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 that she be granted an increase in the percentage of disability granted by the Physical Evaluation Board (PEB).

2.  The applicant states, in effect, that the PEB granted her a 10% disability rating and she appealed the decision; however, the PEB unfairly rejected her appeal due to a prior narrative summary.  She goes on to state that she believes her medical board was rushed and that consideration for her lost career was not taken into account.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

3.  The applicant provides copies of her DD Form 214 (Certificate of Release or Discharge from Active Duty), her appeal of the PEB, discharge orders, PEB proceedings and her Department of Veterans Affairs (VA) Rating Decision.

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 30 December 1987.  She completed her training as a food service specialist and remained on active duty through a series of continuous reenlistments.  She was promoted to the pay grade of E-6 on 1 April 1998.

3.  On 5 March 1999, a Medical Evaluation Board (MEB) convened at Fort Bliss, Texas and determined that the applicant suffered from fecal incontinence.  The MEB recommended that she be referred to a PEB.

4.  On 10 March 1999, a PEB convened at Fort Lewis, Washington and determined that her diagnosis warranted a 10% disability rating and separation with severance pay.  The applicant did not concur but waived a formal hearing.  She submitted her appeal in writing and requested that she be retired. 

5.  On 19 March 1999, the President of the PEB dispatched a memorandum to the applicant informing her that her PEB was properly conducted in accordance with applicable regulations and that her case was being forwarded to the U.S. Army Physical Disability Agency (USAPDA) for final review and approval.  The applicant was advised to forward any additional documents to that agency.

6.  The USAPDA upheld the findings of the PEB and on 22 March 1999 the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing.  The USAPDA approved the PEB proceedings on       23 March 1999.

7.  On 28 April 1999, the applicant was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24B(3), due to disability with severance pay.  She had served 11 years, 3 months and 29 days of active service and was paid $42,055.20 in severance pay.

8.  On 4 May 1999, the VA granted the applicant a 60% service-connected disability rating for fecal incontinence.

9.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  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.

10.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

11.  Title 38, U.S. Code, sections 310 and 331, permit 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.  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.

12.  There is a difference between the VA and the Army disability systems.  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 changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case suggests that the applicant's disabilities were properly rated in accordance with the VA Schedule for Rating Disabilities and her separation with severance pay was in compliance with laws and regulations in effect at the time.

 2.  The applicant was found unfit for duty and she was assigned a disability rating of 10 percent for her unfitting condition (fecal incontinence) as it existed at the time of her PEB hearing.  She initially appealed the findings and recommendation of the PEB; however, her appeal was denied and she then concurred with the findings and recommendation of the PEB.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing.  The Department of the Army rating becomes effective the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show she was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB was incorrect.

4.  The fact that the VA, in its discretion, awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department of the Army.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20140009833





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ABCMR Record of Proceedings (cont)                                         AR20140009833



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