IN THE CASE OF:  

		BOARD DATE:  6 March 2015

		DOCKET NUMBER:  AR20140012074


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 his medical discharge with severance pay be converted to a medical retirement.

2.  The applicant states, in effect, that he received medical severance pay for chronic pain due to plantar fibroma in his left foot; he was never evaluated for the other conditions listed on his medical history report.  He was having problems with his ankles and knees and he should have been evaluated for these disabilities as well.  Additionally, he was not offered a mental health evaluation.  He had two combat deployments to Kosovo and Iraq.  

3.  The applicant provides the following documents arranged chronologically:

* his Medical Evaluation Board (MEB) Narrative Summary (NARSUM), dated 17 October 2003
* his DA Form 3947 (MEB Proceedings), dated 12 November 2003
* an extract of his DA Form 199 (Physical Evaluation Board (PEB)), dated 24 November 2003
* Orders 343-0042, issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Kentucky, on 9 December 2003
* Orders 358-0023, issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Kentucky, on 24 December 2003
* his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 21 January 2004
* his Department of Veterans Affairs (VA) Rating Decision, dated 5 June 2013
* his VA Disability Compensation Ratings, dated 10 June 2013
* numerous documents from his service medical records (approximately   90 pages)
* numerous documents from his Military Personnel Records Jacket (MPRJ) 

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 13 June 1997.  He completed initial entry training and was awarded military occupational specialty (MOS) 11B (Infantryman).  He reenlisted on 24 November 1999 for reclassification training, and after completing formal training he was awarded MOS 31B (Military Police).  The highest rank/grade he attained during his period of military service was sergeant/E-5.  

3.  On 17 October 2003, an MEB convened at the Blanchfield Army Community Hospital, Fort Campbell, Kentucky.

   a.  The MEB NARSUM indicates his chief complaint was plantar fibroma of the left foot, which resulted in the issuance of a permanent physical profile and his referral to an MEB.
   
   b.  The MEB concluded he did not meet medical retention standards and referred him to a PEB, based on the diagnosis of plantar fibroma, left foot with frequency of pain as occasional and intensity as minimal.  No other conditions were listed on the DA Form 3947.   
   
   c.  On 18 November 2003, the MEB findings and recommendation were approved. 
   
   d.  On 20 November 2003, he agreed with the MEB's findings and recommendation.  He further indicated that he did not desire to continue on active duty.
   
4.  On 24 November 2003, an informal PEB convened at Fort Sam Houston, TX, and considered the applicant's case.  It was determined that his diagnosed "chronic pain due to plantar fibroma, left foot (rated as minimal/occasional)" prevented him from reasonably performing the duties required by his grade and military specialty.  The PEB rated his condition under the VA Schedule of Rating Disabilities (VASRD) codes 5099/5003, in accordance with U.S. Army Physical Disability Agency (USAPDA) Policy/Guidance Memorandum #13, dated 8 April 2002, with a 0% disability rating. 

5.  The PEB recommended that he be separated with severance pay, if otherwise qualified.  On 1 December 2003, he concurred with the findings and recommendations and waived a formal hearing of his case.  On 2 December 2003, the PEB's findings and recommendation were approved.

6.  On 21 January 2004, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of physical disability with severance pay.  His DD Form 214 confirms:

* he completed 6 years, 7 months, and 9 days of net active service
* he served in Kosovo during the period 10 April through 23 September 1999 and he served in Iraq and Kuwait during the period 28 February through 5 July 2003
* he received $29,828.40 in disability severance pay in conjunction with his discharge

7.  His official service medical records are not available for review.  His available records are void of documentation that shows he underwent a mental health evaluation prior to his discharge.  

8.  He submitted a copy of his MEB NARSUM, MEB Proceedings, PEB Proceedings, and his VA Rating Decision and compensation ratings letter in support of his request.  

* his MEB NARSUM and MEB Proceedings only identified his condition of  plantar fibroma of the left foot
* his PEB proceedings supported the conclusions reached in his MEB proceedings
* his VA Rating Decision and compensation rating letter show the VA granted him a combined 80 percent service-connected disability rating for various conditions, including his knees and ankles  

9.  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.

   a. Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

   b. Paragraph 3-5 contains guidance on rating disabilities.  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.  Any nonratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable.

10.  Title 38, U.S. Code, sections 1110 and 1131, permits 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.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.

11.  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 rated at least 30 percent.  
12.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested his discharge with severance pay be changed to disability retirement.  His request was carefully considered; however, there is insufficient evidence to support his request.

2.  The evidence of record shows he suffered from one medical condition that rendered him unable to satisfactorily perform the duties of his grade and specialty.  He was referred to an MEB because of his inability to physically perform the basic functions of his MOS due to plantar fibroma in his left foot. Consequently, his records were evaluated by an MEB, which ultimately referred him to a PEB.  The PEB found him medically unfit, rated his disabling condition at 0 percent, and recommended separation by reason of physical disability with severance pay.  He concurred with the MEB and PEB results and waived a formal hearing. 

3.  He now believes he should receive an upgrade of his disability status because the VA granted him a different percentage for numerous other conditions that were not evaluated by either the MEB or PEB.  

4.  However, an award of a different rating by another agency does not establish error in the rating assigned by the Army's PDES.  Operating under different laws and its 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.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Any rating action by the VA does not compel the Army to modify its rating.

5.  He contends he suffers from multiple physically-limiting conditions that are equally debilitating, and if all of these conditions had been considered his Army disability rating would have been higher, thus qualifying him for a medical retirement.  However, only his plantar fibroma of his left foot was evaluated and deemed severe enough to cause him to be unfit for continued service.  He concurred with both the MEB and PEB proceedings with no contentions.  

6.  His physical disability evaluation was conducted in accordance with law and regulations and there does not appear to be an error or an injustice in his case.  7.  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)                                         AR20090007788



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ABCMR Record of Proceedings (cont)                                         AR20140012074



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