IN THE CASE OF:	

		BOARD DATE:	9 June 2015

		DOCKET NUMBER:  AR20140014675


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 his military records to show he was retired due to physical disability.

2.  The applicant states he was discharged with a physical disability rated at 
10 percent.  Consequently, his disability rating was increased to 30 percent and then to 50 percent.  His disability is service connected.  He now believes he should have been retired from active duty.

3.  The applicant provides copies of:

* A DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A Consultation, Memorial Hospital Radiology and Medical Imaging Department, dated 5 December 2003
* A Department of Veterans Affairs (VA) Rating Decision, dated                  19 November 2004
* A VA Letter, dated 23 January 2007
* A Polysomnography Physician Interpretation Report, Franciscan Sleep Disorders Center, dated 3 December 2012
* A letter to the applicant from the Franciscan Medical Group, dated           
6 December 2012
* An Imaging Report, TRA Medical Imaging, dated 21 March 2013
* A VA Letter written to the applicant, A Summary of Benefits, dated            6 August 2014



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 31 May 1991.  He completed the required training as an imagery analyst.

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated in November 1991, reports that the applicant had suffered an injury resulting in lower back pain.  The form was signed by a physician on 18 May 1999.  The form does not indicate whether the injury was or was not in the line of duty.  The form was not signed or dated by anyone in the applicant's chain of command.

4.  A memorandum, United States Total Army Personnel Command, dated 
18 May 1999, subject: Line of Duty Determination on the applicant, states "A presumptive finding of IN LINE OF DUTY has been made in the case of [the applicant's rank and name] for the low back pain he experienced in November 1991 at Fort Gordon, GA.

5.  A DA Form 3947 (Medical Evaluation Board Proceedings) dated 3 June 1999, states the applicant was diagnosed with having a chronic low back pain with grade 1 spondylolisthesis since October 1991.  It further indicates that the applicant was referred to a physical evaluation board (PEB).

6.  A DA Form 3349 (Physical Profile), initiated 28 April 1999, shows the applicant was granted a permanent physical profile for his low back pain, dated 
3 June 1999.



7.  A DA Form 199 (Physical Evaluation Board Proceedings) shows a PEB convened on 10 June 1999 to consider the applicant's medical condition.

	a.  He was found physically unfit to perform the duties of a Soldier of his rank and primary specialty.  This finding was based on chronic low back pain with radiographic findings of grade 1 L5/S1 spondylolisthesis.

	b.  His condition was rated 10 percent disabling in accordance with the VA Schedule for Rating Disabilities (VASRD) codes 5299 and 5295.  The PEB noted no other diagnoses.

	c.  The PEB recommended the applicant be separated with severance pay if otherwise qualified.  The applicant concurred with the findings and indicated his desire to not remain on active duty.

8.  On 17 August 1999, the applicant was discharged from active duty under the authority of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), due to a physical disability with severance pay.

9.  In a letter, dated 6 August 2014, the VA granted him a combined disability rating of 50 percent effective 1 March 2014.

10.  Army Regulation 635-40  establishes the Army Physical Disability Evaluation System 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.

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 rating of at least 30% and 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 at less than 30%.

12.  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 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was retired due to physical disability because the VA has awarded him a combined disability rating of 50 percent.

2.  The PEB rated his chronic low back pain at 10 percent disabling and found him physically unfit to perform his military duties.  Accordingly, he was discharged with severance pay in 1999.  There is no apparent error or injustice with this action.

3.  The available evidence indicates the VA granted the applicant a combined disability rating of 50 percent effective in 2014.  While the particular medical conditions are not discussed in the available evidence, it is presumed that the applicant's chronic low back pain is included as a part of the VA rating.

4.  An award of a VA rating does not establish entitlement to a medical retirement.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability.

5.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability up or down depending upon that agency's examinations and findings at the time.

6.  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)                                         AR20130016984



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ABCMR Record of Proceedings (cont)                                         AR20140014675



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