IN THE CASE OF:	  

		BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140018215


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, reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20130017314 on 26 June 2014.  In his original request, he requested correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was retired by reason of permanent disability. 

2.  The applicant states, in effect, the Board incorrectly stated his medical conditions and the reason for his discharge, and there were errors and inaccuracies in the way the ABCMR made their decision.  Additionally, he states:  
     a.  As stated in the record of proceedings (ROP), based on the medical evaluation board (MEB) he does not have nor has he ever had amblyopia ex-anopsia (left eye).  He was not retired by reason of physical disability but by mental disability.

     b.  He never received 20% disability [severance pay].

     c.  He never received evidence that his severance pay was deducted from his [Department of Veterans Affairs (VA)] compensation beginning in the 1976-1977 timeframe.

     d.  He added the following as a postscript (P.S.) to his letter:  "I was informed that if reastated [sic] to waiver retirement pay and receive special combat pay, a number of certified service officer's said that I qualified for combat pay.  Please note they deducted from my compensation to pay back severance pay."   
3.  The applicant provides:

* Army Review Boards Agency (ARBA) letter, dated 8 July 2014 
* ABCMR ROP, dated 26 June 2014
* an Outpatient Routing Slip, dated 3 January 2012
* a Constituent Authorization Form from the office of his Member of Congress
* a  letter to the Director, ABCMR, from his Member of Congress, dated     16 September 2014
* ARBA response letter to his Member of Congress, dated 14 October 2014

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130017314 on 26 June 2014.  

2.  The applicant provides a new argument that was not considered during the initial review of his request.  Therefore, this new argument warrants consideration by this Board.

3.  With prior enlisted service in the U.S. Marine Corps (USMC) and the USMC Reserve, the applicant enlisted in the Regular Army on 17 April 1968.  He reenlisted in the Regular Army on 19 January 1970.

4.  He was provided a separation physical examination on 16 June 1970, which found him unqualified for further military duty.  This examination revealed the following diagnoses:

* schizophrenic reaction – paranoid type
* hyperopic astigmatism
* amblyopia ex-anopsia OS

5.  A MEB convened on 17 June 1970, to determine whether he should be referred to a Physical Evaluation Board (PEB) for consideration.  The MEB documented its findings on a DA Form 8-118 (Medical Board Proceedings), which shows the following diagnoses: 

     a.  Schizophrenic reaction, paranoid type.  Condition: In partial remission.  The patient is mentally competent for pay purposes and has the capacity to understand the nature of or to conduct or cooperate in these Board proceedings. The patient is not considered to be dangerous to himself or others.  Further hospitalization and treatment not required.   

     b.  Hyperopic astigmatism (Per internet search, is defined, in essence, as blurry farsightedness).

     c.  Amblyopia ex-anopsia OS (Per internet search, is defined, in essence, as a unilateral impairment of visual acuity in the oculus sinister (OS = left eye); which is interpreted as lazy eye).

6.  The MEB recommended that he be referred to a PEB for consideration.  He stated by his initials that he did not desire to continue on active duty.  He also lined out the phrase "I do not agree with the board's action and desire to appeal.  My written appeal is attached as enclosure no" with his initials, and thereby agreed to the phrase, "I have been informed of the approved findings and recommendations of the board" with his signature dated 22 June 1970.   

7.  On 23 June 1970, a PEB convened to determine his fitness for retention on active duty.  The board considered two diagnoses in their determination of his fitness.  The first diagnosis was schizophrenic reaction - paranoid type, and the other diagnosis was muscle injury – group XVII (right).  The first diagnosis was considered to be possibly permanent with a disability rating of 30 percent and the second was considered permanent (for wounds received in the Republic of Vietnam) with a disability rating of 20 percent.  The PEB found him physically unfit for military service with a combined disability rating of 40 percent.  The PEB recommended that he be placed on the Temporary Disability Retired List (TDRL) with reevaluation in July 1971.
	
8.  On 22 October 1970, the applicant was honorably retired by reason of temporary disability.  He was placed on the TDRL on the following day.

9.  He was reevaluated in July 1971 and another PEB convened on                   12 November 1971.  The board considered two diagnoses in their determination of his fitness.  

	a.  The first diagnosis was schizophrenic reaction – paranoid type, and the second diagnosis was muscle injury – group XVII (right).  The first diagnosis was determined to be in remission and given a disability rating of 0 percent.  

	b.  The second diagnosis was given a disability rating of 20 percent.  The board found him to be unfit and recommended he be separated from the service with severance pay and a combined disability rating of 20 percent.  
He concurred with the findings and waived a formal hearing and signed the      DA Form 199 (Physical Evaluation Board Proceedings) with his signature on     24 November 1971.  
	
10.  Letter Orders Number D 1-154, issued by Department of the Army, Office of the Adjutant General on 10 January 1972, removed him from the TDRL and ordered his discharge with severance pay and a 20 percent disability, effective 31 January 1972.

11.  His Defense Finance and Accounting Service (DFAS) financial records are not available for review; therefore, his existing record contains no documentation that verifies he was paid severance pay following his removal from the TDRL.

12.  The applicant provides an Outpatient Routing Slip from a facility (presumed to be a VA facility), dated 3 January 2012, which shows he was awarded an 80 percent service-connected disability rating.  

13.  The exact award percentages and effective dates related to the VA's determinations of his service-connected disabilities are unknown.

14.  Army Regulation 635-5 (Separation Documents) at the time prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

15.  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 in the Army rating.  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, 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.  It 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, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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. 

16.  Title 38 of the Code of Federal Regulations (CFR), section 3.700 (General) provides the following rules and guidelines vis-à-vis the offset of VA compensation pay based on the recoupment of disability severance pay. 

	a.  Where the disability or disabilities found to be service-connected are the same as those upon which disability severance pay was granted, or where entitlement to disability compensation was established on or after 15 September 1981, an award of compensation is made subject to the recoupment of the member's disability severance pay. 

	b.  Where entitlement to disability compensation was established prior to 
15 September 1981, compensation payable for service-connected disability other than the disability for which disability severance pay was granted will not be reduced for the purpose of recouping disability severance pay. 

	c.  Where entitlement to disability compensation was established on or after 15 September 1981, a veteran may receive disability compensation for disability incurred or aggravated by service prior to the date of receipt of the severance pay, but VA must recoup from that disability compensation an amount equal to the severance pay. 

	d.  Where payment of severance pay was made on or before 30 September 1996, VA will recoup from disability compensation an amount equal to the total amount of the severance pay. 

	e.  Where payment of severance pay was made after 30 September 1996, VA will recoup from disability compensation an amount equal to the total amount of the severance pay less the amount of Federal income tax withheld from such pay. 

17.  Under 38 CFR 3.700, it appears the applicant's monthly VA compensation was withheld pending the recoupment of his disability severance pay.

18.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR considers 
individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his previous case, in which he contends the Board incorrectly stated his medical conditions and the reason for his discharge, was carefully considered.  

2.  He contends he does not have nor has he ever had amblyopia ex-anopsia (left eye).  However, the available medical evidence reveals he was examined and diagnosed with this condition, which is also documented in his separation physical examination dated 16 June 1970; therefore, it was correctly stated in the previous ABCMR ROP.

3.  He further contends that he was not retired by reason of physical disability but by mental disability.  The evidence of record shows he was honorably retired by reason of temporary disability and placed on the TDRL on 23 October 1970.  He was reevaluated in July 1971, and on 12 November 1971, another PEB determined, based on that evaluation, that his schizophrenic reaction – paranoid type diagnosis was in full remission.  Consequently, he was given a disability rating of 0 percent for that condition.  In addition, the PEB did determine the muscle injury – group XVII (right) diagnosis as permanent.  As such, he was given a 20 percent physical disability rating for that condition. 

4.  He was placed on the TDRL on 23 October 1970.  According to the applicable regulation, the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active service.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

5.  On 10 January 1972, he was determined to be permanently unfit for duty by reason of physical disability, removed from the TDRL, and discharged from the service with entitlement to severance pay.  He was awarded a 20 percent disability rating.  Based on the foregoing, the correct reason for his separation from military service was "physical disability," as correctly stated in the previous ABCMR ROP. 


6.  He contends he never received severance pay for his 20 percent disability, and he never received evidence that his severance pay was deducted from his [VA] compensation.  Depending on the effective date of his initial VA compensation award, the recoupment of his disability severance pay prior to his receipt of VA compensation would have been appropriate.  Since there is no historical evidence of his VA compensation awards and effective dates, there is no basis to determine the validity of any recoupment actions taken by the VA 
vis-à-vis his disability severance pay.  Additionally, there is no basis to dispute that either the Army or the VA did not conduct their affairs as directed by government policies and regulations in effect either at the time of his discharge or since.    

7.  He subsequently added the following as evidence to his application: "I was informed that if reastated [sic] to waiver retirement pay and receive special combat pay, a number of certified service officer's said that I qualifies for combat pay.  Please note they deducted from my compensation to pay back severance pay."   Unfortunately, the Board cannot determine what program he is referring to and as such no determination can be made to its relevance in this case.

8.  The fact that he was subsequently awarded an 80 percent service-connected disability rating by the VA is not a sufficient justification for changing the reason and authority for separation shown on his DD Form 214.  The Army disability rating is used to compensate the individual for the loss of a military career.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon its examinations and findings and its determination of how a veteran's disability affects his or her quality of life throughout the remainder of his or her life.

9.  While it is clear that he disagrees with the ABCMR's earlier decision, he has not provided a convincing argument or adequate evidence to sufficiently mitigate the decision of the previous Board's decision.  In view of the above, there is an insufficient 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 to amend the decision of the ABCMR set forth in Docket Number AR20130017314, dated 26 June 2014. 



      _______ _  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)                                         AR20130017314



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ABCMR Record of Proceedings (cont)                                         AR20140018215



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