IN THE CASE OF:  	  

		BOARD DATE:  10 September 2015	  

		DOCKET NUMBER:  AR20150001518 


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 records to reflect retirement due to physical disability in lieu of discharge due to physical disability with severance pay.

2.  The applicant states he should have been medically retired.

3.  The applicant provides:

* multiple military medical records, including medical prescreening forms, immunization record, reports of medical history, chronological records of medical care, radiologic consultation reports, and medical record reports
* DA Forms 3349 (Physical Profile)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two letters from a chiropractic physician, Decker Chiropractic Clinic
* letter from a family medicine physician's assistant, Grace Medical Group, Limited Liability Company

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 11 August 1987.

3.  On 16 September 1988, he sustained a fracture to his left ankle while playing football.  He subsequently underwent an open reduction internal fixation surgery using a long plate and eight screws, to include one syndesmosis (joint connecting fibula and tibia at the ankle) screw, which was removed after 6 weeks.  His postoperative course was marked by the development of apparent calcification within the syndesmosis ligament and post-traumatic arthritis of the left ankle, resulting in persistent pain in the left ankle and an inability to return to full duty.

4.  On 23 May 1989, he underwent a medical evaluation board (MEB).  The ensuing physical examination and x-ray data revealed:

* a long surgical scar over the lateral aspect of the left ankle
* some decreased sensation over the lateral aspect of the left foot
* pain in the extremes to motion with pain with dorsiflexion greater than approximately 10 degrees and pain over the ankle with eversion and inversion
* approximately 45 degrees plantar flexion
* eight screws and a seven-hole plate in the left fibula
* calcification within the syndesmosis
* changes in the left ankle joint consistent with post-traumatic arthritis

5.  The MEB Narrative Summary shows the applicant was diagnosed with post-traumatic arthritis in the left ankle and calcification within the syndesmosis of the left ankle.  The MEB recommended his medical separation from the Army under the guidelines established by Army Regulation 40-501 (Standards of Medical Fitness) due to a prognosis that he would likely not be able to return to full duty status without a physical profile.  Although he did not have a significant functional disability, his condition was inconsistent with adequate acceptable performance of life in the military.

6.  His DA Form 3947 (MEB Proceedings) shows the findings of the MEB were approved on 2 June 1989 and he was referred to a PEB.

7.  On 18 July 1989, the PEB found the applicant physically unfit due to degenerative joint disease of the left ankle as a residual of a previous fracture, recommended a combined disability rating of 10 percent, and recommended separation with severance pay.

8.  On 24 July 1989, the applicant did not concur with the findings, but waived a formal hearing providing a written appeal instead.  In his appeal, the applicant stated he believed he deserved a higher percentage than 10 percent due to his willingness to fight and die for his country if needed.  He argued he had a family at home who loved him and cared for his well-being and wondered if 10 percent was all he was worth to his country.  Additionally, he made the case that his condition would not improve but only worsen over time.  Included with his appeal was a letter from his noncommissioned officer in charge, requesting that the PEB reevaluate his case and grant him a 20-percent disability rating, as that amount better reflected the applicant's willing service to his country and desire to give his all to complete the mission.

9.  On 26 July 1989 after reviewing the applicant's appeal, the PEB upheld its recommendation of a 10-percent disability rating and separation with severance pay.  In a letter from the PEB, dated 26 July 1989, the applicant was informed of the determination and the basis thereof.  The PEB was required to rate his condition as it currently was at the time.  This was done by comparing his condition as described in the MEB with the pertinent section of the Department of Veterans Affairs (VA) Schedule for Ratings Disabilities (VASRD) which provides a percentage rating.  The MEB diagnosed his condition as post-traumatic arthritis as a residual of a previous ankle fracture.  The VASRD calls for a 10-percent rating for arthritis of one major joint.  The applicant's rebuttal did not provide any additional information that would warrant a change in the rating.

10.  The applicant's PEB findings, along with his appeal, were forwarded to the U.S. Army Physical Disability Agency (USAPDA) for review and final adjudication.  On 28 November 1989, the PEB findings were approved by the USAPDA.

11.  On 10 January 1990, he was honorably discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his narrative reason for separation as physical disability with severance pay.  He was credited with 2 years and 5 months of net active service.

12.  The applicant provided copies of his Army medical records dated between 1 November 1986 and 16 May 1989, which include medical prescreening forms, an immunization record, reports of medical history, chronological records of medical care, radiologic consultation reports, and DA Forms 3349.  These forms all predate his MEB and show:

* he did not enter the Army with an ankle injury
* his ankle injury was incurred in the line of duty
* he underwent surgery to repair the ankle, to include placement of screws in his ankle, and was placed on 30 days of convalescent leave
* upon return from convalescent leave, the surgical wound was determined to have been well-healed
* the syndesmosis screw was removed from his ankle 6 weeks post-operation
* he participated in physical therapy
* post-surgery, he still felt pain and swelling with running and prolonged walking
* he was seen by physicians and surgeons in the Orthopedic Clinic, U.S. Army Hospital, Nuremberg on multiple occasions
* these doctors treated him, reviewed his medical records, gave him two temporary physical profiles  for the ankle and one permanent physical profile limiting him to run at his own pace and distance

13.  He also provided two letters from a chiropractic physician at the Decker Chiropractic Clinic, dated 29 May 2009 and 20 May 2014.  The 29 May 2009 letter stated the applicant was treated at that clinic for neck, mid back, and lower back pain.  The doctor stated it was her professional opinion that his condition may be the result of a prior severe left ankle injury.  The 20 May 2014 letter stated he continued to receive treatment at that clinic for a cervical spine/back disorder, which the doctor stated is directly linked to his prior severe left ankle injury sustained while in the Army and his body's adjustment to accommodate the weaker extremity.

14.  Records indicate he filed a disability claim with the VA on several occasions for various conditions.  A printout, dated 1 August 2013, shows the applicant was granted service-connected disability by the VA for chronic back strain, depression (not otherwise specified), traumatic arthritis (left ankle), tinnitus, residual scars (left ankle) and dermatitis (left ankle) for a combined rating of 80 percent.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.

16.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES 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.  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.  Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits:

	a.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

	b.  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

18.  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 of less than 30 percent.

19.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred into the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a MEB
* receive a permanent physical profile rating of 3 or 4 and are referred by a Military Occupational Specialty Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, U.S. Army Human Resources Command

	c.  The PDES assessment process involves two distinct stages:  the MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees.

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

20.  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 VA does not have the 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.  These two government agencies operate under different policies.  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's request for correction of his records to show he retired due to physical disability was carefully considered.

2.  Records indicate he was properly discharged from the Army under the provisions of Army Regulation 635-40, chapter 4, after referral to an MEB and subsequent PEB which found he did not meet medical retention standards for the unfitting condition of post-traumatic arthritis as a residual of an ankle fracture.

3.  There is no indication that the military medical records supplied by the applicant were not fully and properly considered by the MEB and the PEB in determining his diagnosis.  Additionally, the disability percentage awarded by the PEB is consistent with the rating guidelines within the VASRD for his diagnosed condition.

4.  Title 10, U.S. Code, 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.  The applicant had neither a disability rating of 30 percent nor did he have 20 years of service to render him eligible for a physical disability retirement.

5.  The fact that the VA granted him a service-connected disability rating for multiple medical conditions after his discharge from active duty and a chiropractic physician currently states his cervical spine condition is related to his ankle injury does not prove an error on the part of the Army at the time of his discharge.  A VA service-connected disability rating does not establish entitlement to a "medical discharge" or "medical retirement" from the Army.  The VA awards ratings because a medical condition is "service-connected" and affects the individual's civilian employability.  Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

6.  In view of the foregoing evidence, there is no basis for granting the applicant's request.

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 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)                                         AR20150001518



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ABCMR Record of Proceedings (cont)                                         AR20150001518



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