IN THE CASE OF:	  

		BOARD DATE:	  26 March 2015

		DOCKET NUMBER:  AR20140013858 


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, physical disability retirement.

2.  The applicant states he was separated for physical disability with severance pay because he was only rated for one condition.  He should have been rated for all of the disabling conditions that the Department of Veterans Affairs (VA) rated.

3.  The applicant provides his Physical Evaluation Board (PEB) proceedings,
DD Form 214 (Certificate of Release or Discharge from Active Duty), and his VA records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's separation for physical disability with severance pay be changed to a physical disability retirement.

2.  Counsel states the applicant should have been rated for all of the disabling conditions that the VA rated.

3.  Counsel provides copies of the VA correspondence, dated 29 January 2013, VA rating decision, dated 15 April 2013, and a VA reviewing officer's decision, dated 9 July 2012.




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 18 March 2002.  He completed training in military occupational specialty (MOS) 31B (Military Police) and progressed normally.

3.  He served in Djibouti from 20 September 2002 to 22 February 2003, Iraq from 25 February to 3 July 2003, Afghanistan from 25 March 2004 to 29 March 2005 and in Iraq, again, from 21 August 2006 to 28 March 2007. 

4.  On 27 December 2007, a PEB convened at Fort Sam Houston, TX and considered and rated his medical condition of chronic pain, right knee following meniscocapsular separation and subsequent repair.  The PED determined the applicant's right knee condition was disabling under VA codes 5099 (chondromalacia) and 5003 (limited range of motion) based on chronic knee pain following surgical knee repair.  There was a component of retropatellar (behind the kneecap) pain and flexion was limited to 132 degrees.  This rating is based Medical Evaluation Board (MEB) diagnoses 1 and 2.  Diagnosis number 3 (anxiety disorder) was considered not unfitting.

5.  On 10 February 2008, the applicant was honorably discharged due to physical disability with severance pay in the rank of sergeant/E-5.  

6.  After various appeals and reviews the VA extended the applicant the following service connected disability ratings – 

* Post traumatic stress disorder (PTSD)-50 percent
* Right shoulder strain-20 percent
* Residuals right knee injury post surgery-20 percent
* Scar, Residuals right knee injury post surgery-20 percent
* Instability right knee, post surgery-10 percent
* Tinnitus-10 percent
* hearing loss, right ear-0 percent
* Allergic Rhinitis-0 percent Scar, Residuals Right Knee Surgeries (linear scars)-0 percent

7.  On 15 April 2013, the VA notified the applicant of an increased rating for his right shoulder strain and linear scar.  Both were rated at 20 percent. 

8.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

9.  Title 10, United States Code (USC):

	a.  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;

	b.  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; and

	c.  section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent.

10.  Title 38, USC, sections 310 and 331, 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and counsel contend that the applicant's disability ratings at the time of discharge from active duty should be the same as the VA's ratings and he should be granted a physical disability retirement.

2.  The Service can only rate a member's physical condition to the extent that it adversely impacts his performance of duty at the time he is being rated.  The VA, on the other hand, can rate a physical or mental condition if it adversely affects a member's economic, social or emotional adjustment; they can and do reevaluate.

3.  There is no available evidence that he had a physical condition except his right knee that impacted his duty performance.

4.  The applicant has submitted neither probative evidence nor a convincing argument to support his request.  In view of the foregoing, he is not entitled to 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)                                         AR20140013858



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ABCMR Record of Proceedings (cont)                                         AR20140013858



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