IN THE CASE OF:	   

		BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20150000823 


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 reconsideration of his request to correct his retirement orders to show that his disabilities were incurred during simulations of war, that he be issued a DD Form 215 (Correction to DD Form 214) showing his disability retirement and that his percentage of disability be increased.

2.  The applicant states that his orders should reflect that his disabilities were incurred during simulations of war.  He also states that he should be issued a DD Form 215 to show his retirement by reason of permanent disability and his percentage of disability should be increased because his disabilities are getting worse.

3.  The applicant provides copies of his Department of Veterans Affairs (VA) Rating Decision dated 23 October 2014, six pages of medical treatment records, two letters indicating the applicant injured himself unloading computer equipment off the back of a truck, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140001368, on 9 September 2014.

2.  The applicant has provided new evidence and argument that warrants consideration by the Board.

3.  The applicant was ordered to active duty in support of Operation Enduring Freedom (other than Homeland) in the pay grade of E-7 as a member of the U.S. Army Reserve (USAR) on 8 November 2004.  He served continuously and was released from active duty upon the completion of his required active service on 29 June 2011.  He was issued a DD Form 214 that shows he served 6 years, 7 months, and 22 days of net active service this period with no overseas service. 

4.  The applicant was serving in a USAR troop program unit when an Informal Physical Evaluation Board (PEB) convened at Joint Base Lewis McChord, Washington under the Integrated Disability Evaluation System (IDES) on 10 September 2013 and determined that the applicant had the unfitting conditions of cervicalgia, right shoulder osteoarthritis and degenerative disc disease lumbar spine and recommended that he be retired by reason of permanent disability with a 30 percent disability rating.  The PEB determined that his disability was not received as a direct result of armed conflict or was caused by an instrumentality of war.  The PEB also stated the disability did not result from a combat-related injury under the provisions of Title 26, U.S. Code, section 104 or Title 10, U.S. Code, section 10216.

5.  On 20 September 2013, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.  He also did not request a reconsideration of his VA ratings. 

6.  On 12 November 2013, the applicant was retired by reason of permanent disability with a 30 percent disability rating.  Orders D281-07 issued by the U.S. Army Physical Disability Agency state in pertinent part: 

* disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law - NO
* disability resulted from combat related injury as defined in 26 USC 104 – NO

7.  As new evidence, the applicant provided a VA Rating Decision dated 23 October 2014 that shows:

* degenerative disc disease cervical spine increased to 30 percent 
* right shoulder impingement increased to 30 percent 
* degenerative disc disease lumbar spine increased to 20 percent
* vitiligo second digit right hand increased to 10 percent 
* left shoulder osteoarthritis not incurred or aggravated by military service
* entitlement to individual employability was denied

8.  The medical treatment records from a private facility show the applicant received medical treatment and physical therapy from May 2014 through January 2015 for right shoulder, neck and back pain. 

9.  The two reference letters he provides were considered in the Board’s previous decision and offer no new evidence to show he sustained injuries during events that simulated war operations.  He was performing duties commensurate with his military occupational specialty and rank when he injured his back moving equipment at Camp Shelby, MS.  He was on active duty orders at the time, but not overseas.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

11.  Title 26, U.S. Code, section 104 provides special rules for combat-related injuries.  It provides, in pertinent part, that the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra-hazardous service, or under conditions simulating war, or which is caused by an instrumentality of war. 

12.  Army Regulation 635-8 (Separation Processing and Documents) governs the preparation of the DD Form 214.  It states, in pertinent part, that a DD Form 214 will be prepared for all personnel at the time of their retirement, discharge or release from active duty.  Personnel included are members of the Army National Guard and USAR after completing 90 days or more of continuous active duty.  Events that occur subsequent to the period covered by the DD Form 214 will not be entered on that form retroactively. 

13.  Title 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  An award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  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.  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’s contentions and supporting documents have been carefully considered and found to lack merit.

2.  A review of the applicant’s official records failed to show any indication that his injury was combat-related or that it was incurred while simulating combat.

3.  The applicant has also failed to show through the evidence submitted or the evidence of record that he was not properly rated in accordance with the VA Schedule for Rating Disabilities and his retirement was not accomplished in compliance with laws and regulations in effect at the time.  PEB ratings are made based on the conditions that exist at the time of the PEB hearing and are not subject to revision unless evidence can be provided to show that an incorrect evaluation was made at the time.  The applicant provided a recent VA decision that shows the VA increased his disabling rating percentages.  The VA can and does evaluate a veteran post service and if certain standards are met can adjust a veteran’s disabling ratings.  However, the subsequent review by the VA does not necessitate a change in his initial Army rating at time of separation or retirement.  

4.  Additionally, the DD Form 214 is only issued upon separation from active duty and the applicant was not serving on active duty at the time of his retirement with permanent disability.  Accordingly, there is no regulatory requirement to issue him a DD Form 214 or a DD Form 215 to show retirement based on permanent disability as he was a member of a USAR unit at the time of his medical processing and medical unfitness determination. 



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 to amend the decision of the ABCMR set forth in Docket Number AR20140001368, dated 9 September 2014.

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)                                         AR20150000823





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ABCMR Record of Proceedings (cont)                                         AR20150000823



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