BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20150000344 


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 that he receive a re-evaluation by a medical evaluation board (MEB) for his right shoulder and back.

2.  The applicant states that at the time he was medically discharged in 2003 he received a disability rating of 0% and assumed it would be pointless to fight the board’s rating.  However, years after his discharge he was notified that his rating was unfair and had been changed to 20% disability.  However, neither of the boards rated his right shoulder and back.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), his Department of Defense Physical Disability Board of Review (PDBR) proceedings, MEB proceedings, VA Rating Decision and copies of his medical 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 31 December 1996.  He completed his training and remained on active duty through continuous reenlistments.  He deployed to Kuwait during the period August 2001 to 
November 2001 and was promoted to the pay grade of E-6 on 1 August 2002.

3.  On 17 November 2002, a MEB convened at Fort Riley, Kansas and determined that he had an unfitting condition of exertional compartment syndrome, bilateral and recommended that he be referred to a Physical Evaluation Board (PEB).

4.  On 13 December 2002, a PEB convened at Fort Lewis, Washington that determined his condition of exertional compartment syndrome, bilateral was unfitting and that he should be discharged with severance pay with a0% disability rating.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

5.  On 29 January 2003, the applicant was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24B (3) due to disability with severance pay.  He had served 6 years and 29 days of active service and was paid $33,612.60 in severance pay benefits.

6.  On 25 April 2003, the VA granted the applicant a disability rating of 20% for chronic right shoulder strain, 10% for right leg exertional compartment syndrome and 10% for left leg exertional compartment syndrome.

7.  On 28 August 2012, the applicant applied to the PDBR requesting that his disability ratings be reviewed and that he be granted disability for his shoulder and post-traumatic stress disorder (PTSD).  The PDBR determined that his shoulder and psychiatric conditions were not identified as unfitting conditions by the MEB and PEB and therefore were not reviewable.  However, it did determine that the applicant’s unfitting condition did warrant a 10% disability rating for each leg which resulted in a 20% disability rating.  The Deputy Assistant Secretary of the Army (Review Boards) approved the PDBR findings and recommendations and directed that his records be corrected to show a 20% disability rating.  It further advised him that his recourse within the Department of Defense was exhausted.  He had the option to seek relief in a court of appropriate jurisdiction.

8.  A review of the applicant’s official records failed to show any indication that the applicant had an unfitting condition that related to his shoulder or PTSD prior to separation from the service.
9.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibility, and procedures that apply in determining whether a Soldier is unfit because of physical disability to perform the duties of his office, grade, rank, or rating.  The medical treatment facility commander with the primary care responsibility evaluates those referred to him or her and, if it appears as though the Soldier is not medically qualified to perform duty or fails to meet retention criteria, refers the Soldier to an MEB.  Those Soldiers who do not meet medical retention standards are referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

10.  Title 10, U.S. Code, 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.

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 percent.  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 percent.

12.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not empowered 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.

13.  There is a difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating (emphasis added).  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires a PEB hearing.  The VA may find a Soldier unfit by reason of a service-connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on changes in the disability.
14.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and supporting documents have been carefully considered and appear to lack merit.

2.  The applicant has failed to show through the evidence of record and the evidence submitted with his application that he was not afforded proper disability processing, that the evaluation and the rating rendered by the PEB were incorrect, or that he had an unfitting condition at the time the PEB was convened that was not considered.

3.  A PEB determined that the applicant’s leg condition was unfitting and he was granted a 0% disability rating with severance pay.  Accordingly, on 29 January 2003 he was honorably discharged due to disability with severance pay.

4.  On 28 August 2012, the applicant appealed to the PDBR for a review of his disability rating contending in addition to his current rating he should have been granted a disability rating for his shoulder condition and PTSD. 

5.  The PDBR amended the applicant’s unfitting leg conditions and assigned separate ratings of 10% each for leg for a combined disability rating of 20%.

6.  On 22 January 2014, the Deputy Assistant Secretary of the Army (Review Boards) accepted the recommendations of the DODPDBR and directed that his disability rating be changed to 20%.

7.  A review of the available evidence failed to show the applicant had an unfitting condition that related to his shoulder or PTSD prior to his discharge from active duty.

8.  The fact that the VA, in its discretion, may have awarded the applicant a service-connected disability for a medical condition not evaluated by the PEB or a higher disability rating for an evaluated condition is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department of the Army.  

9.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  __X______  ___X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _________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)                                         AR20150000344



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ABCMR Record of Proceedings (cont)                                         AR20150000344



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