IN THE CASE OF:	  

		BOARD DATE:	  25 August 2015

		DOCKET NUMBER:  AR20150000755 


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 her records to show she was medically discharged based on a service-connected physical disability.

2.  The applicant states that she was discharged in 2005 and did not have civilian health insurance until 2012, at which time she was able to go to a specialist for a diagnosis.  She underwent surgery for her (right hip) injury in November 2012.  On 18 October 2013, she received a decision from the Department of Veterans Affairs (VA) in which they verified the injury was service connected.

3.  The applicant provides copies of her civilian medical records, a letter, a radiology report, and VA rating decision.

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 U.S. Army Reserve on 8 August 2003 for a period of 8 years and further enlisted in the Regular Army (RA) on 29 June 2004 for a period of 4 years.  She was awarded military occupational specialty 31F (Network Switch System Operator-Maintainer).

3.  A review of the applicant's military personnel records failed to reveal a copy of her Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) proceedings.

4.  Headquarters, XVIII Airborne Corps, Fort Bragg, NC, Orders 340-0254, dated 6 December 2005, as amended by Orders 348-0370, dated 14 December 2005, honorably discharged the applicant on 21 December 2005 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The orders show she was not entitled to separation pay.

5.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was honorably discharged on 21 December 2005 under the provisions of Army Regulation 635-40, paragraph 4-24b(4), "Disability, Existed Prior To Service, PEB."  She had completed 1 year, 5 months, and 23 days of net active service this period.

6.  In support of her application the applicant provides the following documents.

   a.  Extracts of her medical records from VA Medical Centers, spanning the period 26 May 2006 to 13 March 2009.  They show her chief complaint was right hip pain, low back pain, and right knee pain.  The Circumstances and Initial Manifestation section shows:  "Date of Onset:  July 2004; Occurred during basic training when doing running.  Fell and pulled muscles and hurt her back."  She reported, "about a year and a half ago while on a training run slipped and felt a tearing sensation in the front of her hip on the right."

   b.  A document from D___ E. M____, Medical Doctor, dated 10 September 2012, with Valley Regional Imaging Radiology Report, dated 30 August 2012, that show he examined the applicant on 10 September 2012, for follow-up of right hip MRI [Magnetic Resonance Imaging] study.  He noted, "[t]his study shows a tear of the anterior, superior labrum [hip muscle tear] with minimal displacement.  There is a mild effusion.  No other abnormality noted.  No significant attenuation.  Impressions:  Anterior labral tear."

   c.  A letter from the applicant to the VA Winston-Salem Regional Office, dated 23 October 2012, in support of her request for reinstatement of a service connected disability for her right hip injury.  She outlined events that occurred over the previous eight years that were related to her injury.  It shows, in pertinent part, she stated in, "2004 during my military service after slipping on a run, I experienced severe pain and a pulling sensation in my right groin/hip area.  The pain continued and I experienced decreased mobility of my entire right leg."  
It also shows, in pertinent part:

* on 23 December 2005, she was discharged from the RA due to chronic pain in her right hip; the injury was deemed as sustained prior to service
* in 2006, the VA awarded her a 20 percent (%) disability rating for chronic hip pain
* in 2007, the VA determined that her injury was healed and the disability rating was dropped to 0%
* since 2007, she has continued to experience pain and limited mobility of her right leg
* on 10 September 2012, an abnormality was found and diagnosed as an anterior labral tear
* on 14 November 2012, she was scheduled for arthroscopic surgery on right hip

   d.  VA Winston-Salem Regional Office, Rating Decision, dated 18 October 2012, that shows a temporary evaluation of 100% was assigned effective 
30 November 2012 based on a surgical or other treatment necessitating convalescence.  A noncompensable evaluation was assigned from 1 February 2013.  Service connection for residual scar, right hip as secondary to the service-connected disability of status post arthroscopic labrum repair (previously rated as residual of right groin/hip strain) was granted with an evaluation of 0% effective 
30 November 2012.

7.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures 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.  Chapter 4 (Procedures), section VI (Disposition Subsequent to Adjudication), paragraph 4-24 (Disposition by the U.S. Army Physical Disability Agency (USAPDA)), provides that the USAPDA will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to PEB for clarification or reconsideration when newly discovered evidence becomes available and is not reflected in the findings and recommendations.  Subparagraph b (Final disposition) provides that based upon the final decision the USAPDA will issue retirement orders or other disposition instructions for separation for physical disability without severance pay.

   b.  Appendix B (Army Application of the Department of Veterans Affairs Schedule for Rating Disabilities), Section I (General Rating Policies) shows "Existed Prior To Service (EPTS) – not service aggravated:  If the disability at the time of evaluation is not greater than the EPTS, the condition cannot be considered service aggravated and will be listed as not ratable."

8.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has impairment rated at less than 30% disabling.

9.  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 VA (or other government agency) disability rating does not establish error or injustice on the part of the Army.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different determinations based on the same impairments.  Furthermore, 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.

10.  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 contends, in effect, that her records should be corrected to show she was discharged from the U.S. Army based on permanent disability (right hip pain) as a result of falling while she was running during basic training and also because the VA granted her service connection for her status post arthroscopic labrum repair.

2.  Records show the applicant was honorably discharged under the provisions of Army Regulation 635-40 based on an EPTS disability as determined by the PEB.  The evidence of record also shows that, if the disability at the time of evaluation is not greater than that which EPTS, the condition cannot be considered service aggravated and will be listed as not ratable.


3.  The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  In the absence of evidence to the contrary, the PEB and discharge process, including the reason for separation shown on her DD Form 214, is presumed to have been, and still is, appropriate.

4.  The statutory guidance permits the VA to grant service connection for disabilities which it determines were incurred in or aggravated by active military service (emphasis added), including those conditions that are detected after discharge, and which impair the individual's industrial or social functioning.  The fact that the VA determined the applicant's condition is service connected is not within the purview of the ABCMR.

5.  Therefore, in view of the foregoing, there is an insufficient basis for granting 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)                                         AR20150000755



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ABCMR Record of Proceedings (cont)                                         AR20150000755



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