IN THE CASE OF:  

		BOARD DATE:  5 February 2015  

		DOCKET NUMBER:  AR20140009962


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 her military records to show she was retired due to physical disability.

2.  The applicant states she is basing her request on the Department of Veterans Affairs (VA) increasing her service connected physical disability from 10 to 
50 percent disabling.

3.  The applicant provides copies of:

* A VA Form 21-0819 (VA/DOD Joint Disability Evaluation Board Claim), dated 22 July 2010 with enclosures (31 pages)
* A DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated      2 September 2010
* A DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement), dated 4 October 2010
* A DA Form 5893 (Soldier's Medical Evaluation Board/Physical Evaluation Board Counseling Checklist), dated 26 October 2010
* A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated    26 October 2010
* A Memorandum, subject: Exception to Policy - Request for Formal PEB, dated 26 October 2010
* A Letter, U.S. Army Physical Evaluation Board, dated 5 November 2010
* A VA Disability Evaluation System Proposed Rating, dated 24 November 2010
* A DA Form 5893, dated 15 December 2010
* A PDES Pilot Program Election Page and DA Form 199 (Signature and counseling page), dated 15 December 2010
* Orders 010-0126, Fort Hood, TX, dated 10 January 2011
* A DD Form 214 (Certificate of Release or Discharge from Active Duty), Member Copy 4
* A VA Rating Decision, dated 29 March 2011 (10 pages)
* A VA Decision Review Officer Decision, dated 20 August 2013 (9 pages)
* A Scott and White Gynecological Cytology, dated 7 November 2013
* A Scott and White Electronic Report, Testing for Chlamydia trachomatis and Neisseria gonorrhoeae, dated 20 November 2013
* A Scott and White Clinic Note, Annual Examination, Obstetrics/Gynecology, dated 20 November 2013
* A Scott and White Electronic Report, Negative finding for gonorrhoeae, dated 21 November 2013
* A Scott and White Clinic Note, left-sided pelvic pain, dated 12 December 2013
* Service Medical Records (approximately 304 pages)
* VA Medical Records (approximately 388 pages)
* Enlisted Record Brief
* A DA Form 2166-8 (Noncommissioned Officer Evaluation Report) ending 31 October 2008
* A DA Form 2166-8, ending 20 September 2009
* A Defense Finance and Accounting Service Military Leave and Earnings Statement for 1-30 June 2010

CONSIDERATION OF EVIDENCE:

1.  On 6 April 2006, the applicant enlisted in the Regular Army.  She completed her initial training and was awarded military occupational specialty 68W (Health Care Specialist).

2.  A DA Form 3947 initiated on 2 September 2010 reports that an MEB was held wherein the applicant was diagnosed with the following medical conditions:

	a.  Migraine headaches, medically unacceptable, originated about                 13 November 2007 while entitled to base pay, and did not exist prior to military service and



	b.  the following medical conditions that were found to be medically acceptable:

* Mennorhagia
* Dysmenorrhea
* Bacterial vaginosis
* Left ankle strain
* Left trapezius strain
* Left wrist ganglion cyst
* Adjustment disorder not constituting a physical disability

3.  A DA Form 199 reports that an informal PEB convened to consider the applicant's physical condition.  The PEB found the applicant unfit due to migraine headaches.  Her medical condition was rated at 10 percent disabling and considered to be permanent in accordance with VA Schedule for Rating Disabilities code 8100.  The PEB recommended that the applicant be separated with severance pay, if otherwise qualified.  The applicant was counseled regarding the PEB findings and determination.  She did not concur and requested a formal hearing.  She signed the form on 26 October 2010.

4.  On 5 November 2010, the Texas PEB found the applicant was physically unfit to continue military service due to having migraine headaches.

5.  On 24 November 2010, the VA made a disability determination and published a proposed rating showing:

* Migraine headaches rated at 10 percent (DES rating)
* Left ankle strain rated at 10 percent (VA rating)
* Bacterial vaginosis rated at 10 percent (VA rating)
* Adjustment disorder with depressed mood rated at 10 percent (VA rating)
* Left wrist ganglion cyst rated at zero percent (VA rating)
* Left trapezius strain rated at zero percent (VA rating)

6.  On 15 December 2010, the applicant initialed and signed an informal reconsideration indicating that she concurred with the PEB findings.  She waived her right to a formal hearing and did not request reconsideration of the VA ratings.

7.  The applicant's DD Form 214 shows she was discharged on 27 March 2011 due to disability, severance pay, non-combat (enhanced).  She had attained the rank of sergeant, pay grade E-5 and had completed 4 years, 11 months, and 
22 days of creditable active duty service.

8.  A VA Rating Decision, dated 29 March 2011, indicates the VA granted service connection effective 28 March 2011 for the following conditions:

* Left ankle strain rated at 10 percent
* Bacterial vaginosis rated at 10 percent
* Migraine headaches rated at 10 percent
* Adjustment disorder with depressed mood rated at 10 percent
* Left wrist ganglion cyst rated at zero percent
* Left trapezius strain rated at zero percent

9.  A VA Rating Decision, dated 20 August 2013, indicates the VA reevaluated   the applicant's conditions.  The VA determined that her service connected conditions for migraine headaches and adjustment disorder had worsened and granted the following increase to her disability ratings with an effective date of 
2 August 2012:

	a.  Post-traumatic stress disorder (PTSD), major depressive disorder (previously diagnosed as adjustment disorder with depressed mood was increased to 50 percent.

	b.  Migraine headaches were increased to 50 percent.

10.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30-percent disabling.  It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

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 physically unfit 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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her military records should be corrected to show she was retired due to physical disability because the VA has increased her service connected physical disability (for which she was separated from the Army) rating from 10 to 50 percent disabling.

2.  The available evidence shows the applicant was evaluated by a PEB while on active duty and found unfit for duty due to a medical condition rated at 10 percent disabling.  She concurred with this finding and was subsequently discharged with severance pay.

3.  The VA rating decisions clearly state that her unfitting medical condition had worsened over time resulting in an increase in her disability rating.  There is no evidence showing that what the Army did at the time of her discharge was in error or unjust.

4.  An award of a VA rating does not establish entitlement to medical retirement or 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, it awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability and/or social functioning.  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.

5.  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)                                         AR20120010236



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ABCMR Record of Proceedings (cont)                                         AR20140009962



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