IN THE CASE OF:  	  

		BOARD DATE:  6 October 2015	  

		DOCKET NUMBER:  AR20150001977 


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 a medical retirement.

2.  The applicant states:

	a.  He should have been medically retired, not medically discharged.

	b.  His Department of Veterans Affairs (VA) disability rating is 80 percent which makes him eligible for medical retirement.

	c.  While stationed in Afghanistan and working as a crew chief, they hit the ground hard during a night landing.  He sustained the following injuries from the impact:

* right shoulder
* ruptured hernia mesh
* anxiety
* concussion with migraines
* lumbar strain
* right knee patellofemoral syndrome
* tinnitus

	d.  He believes the Army did not use the VA Rating Decision, dated 27 June 2012, in determining his medical conditions.  The Army discharged him, paid him a severance (combat related), and he was gone.  He believes the Army is required to conduct a formal physical evaluation board (PEB) and, if they did so, the formal PEB would see he is rated as 80-percent disabled by the VA.  He believes the Army disregarded multiple disabilities and only used the rating of 20 percent.

	e.  When he was undergoing the discharge process, he was told if he did not agree with the DA Form 199 (Informal PEB Proceedings) he would be reevaluated and given a lower percentage.  He felt pressured into signing the form, not really knowing what he was agreeing to.  The form states the Army considered his other conditions and they were not unfitting.  He disagrees; he tried to stay in the Army and was not allowed to.  He believes an injustice was done.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 199
* Disability Evaluation System (DES) proposed VA Rating Decision, dated 27 June 2012

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the Army National Guard, the applicant enlisted in the Regular Army on 1 July 2009 and trained as a helicopter repairman.  He served in Afghanistan from 19 April 2004 to 11 April 2005 and from 7 June 2010 to 16 August 2010.

2.  He provided a DES proposed VA Rating Decision, dated 27 June 2012, which states the military Service Department requested a disability assessment because he was found unfit for continued military service.  The VA proposed the following unfitting disabilities related to his military service (service-connected):

* status post-right shoulder surgery with degenerative joint disease (dominant) (10 percent)
* status post-right and left inguinal hernia repairs with surgical scar (10 percent)

3.  The proposed combined rating for his unfitting disabilities is 20 percent.

4.  The VA proposed the following claimed disabilities were related to his military service (service-connected):

* concussion with residual migraine headaches with photosensitivity and phono sensitivity (30 percent)
* anxiety disorder (not otherwise specified) and adjustment disorder with anxiety and depressed mood (also claimed as post-traumatic stress disorder) (30 percent)
* lumbar strain (20 percent)
* right knee patellofemoral syndrome (10 percent)
* tinnitus due to concussion/traumatic brain injury (10 percent)
* fibromyalgia with bilateral foot tenderness (0 percent)
* stress fracture lateral cuneiform bone, right foot (0 percent)
* status post appendectomy (0 percent)
* multiple scars, back, abdomen, and right shoulder (0 percent)

5.  The proposed total combined rating for unfitting and claimed service-connected disabilities is 80 percent.

6.  His medical evaluation board proceedings are not available for review.

7.  On 17 August 2012, an informal PEB found him physically unfit due to right shoulder degenerative joint disease and chronic pain syndrome status post recurrent bilateral inguinal hernia surgery.  The PEB considered the following medical conditions and determined they were not associated with profile limitations, did not impact the applicant's ability to perform any 1 of the 10 functional activities, met retention standards, and were not unfitting:

* anxiety disorder
* lumbar sprain
* post-concussive migraines
* stress fracture of right foot
* right knee retropatellar syndrome

8.  The PEB recommended a 20-percent disability rating and separation with severance pay.  On 29 August 2012, the applicant concurred with the PEB findings and recommendation and waived a formal hearing of his case.

9.  On 13 November 2012, he was honorably discharged from active duty by reason of disability with severance pay.
 
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 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

12.  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.

13.  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 required 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant believes the Army did not use the VA Rating Decision, dated 27 June 2012, in determining his medical conditions.  However, the rating action by the VA was merely a proposed VA rating and does not demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns service-connected disability ratings as it sees fit.  The Army, not the VA, determines which conditions are unfitting for continued service.

2.  Although he believes the Army is required to conduct a formal PEB, he had the opportunity to demand a formal hearing, but he waived a formal hearing of his case on 29 August 2012.

3.  The evidence shows an informal PEB found him physically unfit due to right shoulder degenerative joint disease and chronic pain syndrome status
post- recurrent bilateral inguinal hernia surgery.  He concurred with the PEB findings and recommendation.

4.  There is insufficient evidence to show his unfitting conditions were improperly rated by the PEB in 2012.  Therefore, there is no basis for granting the applicant's request for a medical retirement.

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)                                         AR20150001977



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ABCMR Record of Proceedings (cont)                                         AR20150001977



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