IN THE CASE OF:	  

		BOARD DATE:	  26 May 2015

		DOCKET NUMBER:  AR20140012028 


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 an increase in his physical disability rating in order to qualify for a medical disability retirement.

2.  The applicant states:

	a.  His medical discharge was an injustice because of the number of years he had already been in the military.  He had served for over 15 years and he had planned on finishing his career through retirement after 20 or more years.

	b.  They should have looked at all of his medical conditions before they made their decision.  He had injuries that occurred early in his career that continue to bother him tremendously to this day.  He was diagnosed with post-traumatic stress disorder (PTSD) from his time in Iraq and it has really hindered his ability to get and maintain gainful employment since he got out of the military in 2005.  His discharge should be changed to a medical retirement rather than what he was given.

	c.  The error was caused by those who made the final decisions.  Thanks to the Wounded Warrior Act, it was discovered that service members were given the short end of the stick when they were sent before a medical board.  

	d.  He asks the Board to look at all of his conditions and then make an honest decision.  He contends his records show he received a traumatic brain injury (TBI) from an accident in Turkey during his first duty assignment in 1991, as well as facial fractures and a chipped vertebra.  These injuries caused him not to be able to wear a kevlar helmet.  He has other medical conditions that are documented in his medical records as well.

	e.  His PTSD should have been looked at during the process as well.  He is still suffering with things that happened during his deployment.  The Department of Veterans Affairs (VA) granted him a 70 percent (%) service-connected disability rating just for PTSD alone.

	f.  The Army was granting 15-year retirements shortly after he was given a medical discharge.  He feels his separation should have been a retirement as well because of the number of years he served honorably.  It was not his fault that he incurred the injuries he did.  He truly had planned on finishing a 20-year career in the Army.

3.  The applicant provides approximately 300 pages of service medical and dental records and approximately 200 pages of VA 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.  The applicant enlisted in the Regular Army on 27 March 1990.  

3.  His records show he held military occupational specialty (MOS) 13B (Cannon Crewmember).  He completed the Air Assault Course on 31 October 2002 and he was awarded the Air Assault Badge.  He served in Kuwait and Iraq from       28 February 2003 to 12 February 2004.

4.  A DA Form 3349 (Physical Profile) dated 19 April 2005 shows the applicant received a permanent profile for left leg pain due to an illness or disease.  He was rated "3" for lower extremities and all other categories were rated "1" to include psychiatric.  The rating official indicated the applicant required a medical evaluation board (MEB)/physical evaluation board (PEB).  His Narrative Summary (NARSUM), MEB proceedings, and PEB proceedings are not available for review.   

5.  Orders dated 29 August 2005, issued by Headquarters, 101st Airborne Division (Air Assault), directed his separation effective 20 October 2005, with entitlement to severance pay based on a 10% disability rating and 15 years, 
6 months, and 24 days of active duty service.

6.  He was discharged on 20 October 2005, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability, with entitlement to severance pay.

7.  His available medical records include documentation substantiating his contention that he was involved in an auto accident in Turkey in 1991.

8.  His VA Rating Decision is not available; however, a VA Compensation and Mental Examination, dated 2 May 2012, indicates he was diagnosed with PTSD.

9.  On 15 January 2014, the Department of Defense (DOD) Physical Disability Board of Review (PDBR) reviewed his request for an increase in his Army disability rating.  At the time, he contended that other issues, such as his back injury, left knee, head trauma and neck injury from the car accident in Turkey, PTSD following service in Operation Iraqi Freedom, and hearing loss should have been taken into consideration.

10.  The PDBR Record of Proceedings indicates the following:

	a.  He was separated for left leg conditions.  He had left leg pain for about 
15 years and he received surgery in 2004; however, he complained of persistent pain after surgery.  His left leg condition could not be adequately rehabilitated to meet the physical requirements of his MOS or to satisfy physical fitness standards.  He was issued a permanent profile and referred for an MEB.

	b.  The left leg conditions, characterized as "left tibia stress fracture and persistent leg pain status post compartment fasciotomy secondary to fascial defect" were forwarded to the PEB as not meeting medical standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  No other conditions were submitted by the MEB.  

	c.  The PEB adjudicated chronic left leg pain condition as unfitting and rated it at 10%.  The applicant made no appeals and he was medically separated.  
	d.  The PDBR concluded there was insufficient evidence to recommend a change in the PEB adjudication of the chronic left leg pain.

11.  The PDBR informed him that right leg compression syndrome, back injury, left knee, head trauma, neck injury, PTSD, and hearing loss conditions, were not addressed because the conditions were not identified by the MEB or PEB; therefore, they were not within the PDBR's purview.  He was informed that he could address the conditions to the ABCMR.

12.  The applicant's record is void of medical documentation that indicates that aside from "left tibia stress fracture and persistent leg pain," he was suffering from an unfitting PTSD condition or any other unfitting medical condition during his active duty service.  

13.  Army Regulation 635-40 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 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.  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 of 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 VA Schedule for Rating Disabilities (VASRD).  The fact that a Soldier has a condition listed in 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.

14.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, 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 the military service

15.  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 (emphasis added).  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 of less than 30 percent.

16.  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 an 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.  As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  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.

17.  Section 4403 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 1993 (Public Law 102-484), as amended, provided for a Temporary Early Retirement Authority (TERA) during the force reduction transition for enlisted personnel on active duty.  The purpose of this legislation was to provide the Secretary of Defense with an additional temporary force management tool to affect the drawdown of forces.  The law stated that "during the active force drawdown period, the Secretary of the Army may apply the provisions of Section 3914, Title 10, U. S. Code to allow early retirement of an enlisted member with at least 15 years but less than 20 years of service."  The active force drawdown period was defined as beginning on 23 October 1992 and ending on 1 October 1999; however, Congress later enacted legislation that extended the period of the drawdown and the early retirement authority to 31 December 2001.  The opportunity to retire under this TERA program ended in September 2002.

18.  TERA was reinstated by Section 4403 of the NDAA for FY2012 (Public Law 
112-81) and announced by All Army Activities Message Number 281/2012, dated 9 October 2012.  Application of TERA is limited to Soldiers who are denied continued active duty service with an established involuntary separation date of 30 September 2018 or earlier who meet the criteria below: 

	a.  Noncommissioned officers denied continued service as a result of an approved Qualitative Service Program centralized selection board that are serving on active duty and have completed 15 but less than 20 years of active service as of the established involuntary separation date.

	b.  Officers/warrant officers who have twice failed selection for promotion to the next grade, including those who have been selected for, but not yet accepted, selective continuation, who are serving on active duty and have 15 but less than 20 years of active service as of their established involuntary separation date. 

19.  TERA is a discretionary authority and is not an entitlement.  Retirement with at least 20 years of service is the basic retirement entitlement for those who complete a career in the Army.  TERA is a very limited program the Army elects to use as part of a comprehensive force management strategy to shape the force.  


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant, during his period of active duty service, was suffering from a physical condition that failed retention standards.  Although his MEB and PEB proceedings are not available, other evidence clearly indicates that "left tibia stress fracture and persistent leg pain" was the only condition that failed retention standards.  There were no other conditions identified anywhere in any military records that failed retention standards or were found unfitting.  

2.  This one condition was considered by a PEB that determined it to be unfitting. The PEB rated the condition at 10% and recommended his separation with entitlement to severance pay.  He did not appeal the PEB recommendation.  The DOD PDRB later determined there was insufficient evidence to recommend a change in the PEB adjudication of the chronic left leg pain.

3.  Although his VA Rating Decision is not available for review, it appears he believes that because the VA awarded him a disability rating for PTSD, the Army should have, in effect, done the same.  However, this contention is without merit. 

4.  Under the legacy PDES, 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 do not establish error by the Army.  Operating under different laws and 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) that affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

5.  His argument and evidence submitted were carefully considered; however, his record is void of any clear indication that he was suffering from an unfitting PTSD condition, or any other medical condition, at the time of his separation.  It is possible he may have developed PTSD at a later date; however, there is insufficient medical evidence indicating he was unfit to perform his military duties due to PTSD.

6.  The applicant’s separation action with severance pay was accomplished in compliance with laws and regulations and there is no evidence of error or injustice in this case.

7.  The applicant also implied he should have been retired under the provisions of TERA; however, the authority for TERA ended in September 2002 and was reinstated in October 2012.  He attained 15 years of service in March 2005; therefore, this policy did not apply in his case.

8.  Based on 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 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)                                         AR20140012028



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ABCMR Record of Proceedings (cont)                                         AR20140012028



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