IN THE CASE OF:	   

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20150005550 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired.

2.  The applicant states his DD Form 214 should indicate retirement based on a medical discharge which was processed through a medical evaluation board (MEB).  He thought he was medically retired until he tried to enroll his family in TRICARE for health care benefits and was notified that he was honorably discharged due to a medical condition which is different from medical retirement.

3.  The applicant provides:

* DD Form 214
* Standard Form 519-B (Radiologic Consultation Request/Report), dated 24 May 1991
* DA Form 3349 (Physical Profile), dated 10 July 1991
* memorandum, dated 9 August 1991, subject:  Summary of Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) Proceedings
* memorandum, dated 21 August 1991, subject:  MEB/Physical Evaluation Board (PEB) Referral (Applicant)
* Standard Form 88 (Report of Medical Examination), dated 12 November 1991
* memorandum, dated 6 December 1991, subject:  Federal Medical Care Recovery Claim as to (Applicant)
* DA Form 3947 (MEB Proceedings), dated 6 December 1991
* self-authored statement, dated 14 December 1991
* memorandum, dated 17 January 1992, subject:  Retention Past Expiration Term of Service (ETS)
* memorandum, dated 22 January 1992, subject:  Retention Past ETS of (Applicant)
* DA Form 199 (PEB Proceedings), dated 2 July 1992
* Department of Veterans Affairs (VA) Form 21-6796 (Rating Decision), dated 16 September 1992
* VA Form 10-1158 (Doctor's Orders)

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 12 October 1988 for a 3-year period.

3.  Records show the applicant injured his right ankle on 25 June 1991 while running with his unit.  He was evaluated and treated in the emergency room at Darnall Army Community Hospital, Fort Hood, TX, and he received continued follow-up care through the Orthopedic Clinic.

4.  On 10 July 1991, he was assigned a permanent physical profile with limitations consisting of no running, no long-term standing, and no road marches.

5.  On 21 August 1991, an MMRB determined his limitations were so prohibitive that they precluded retraining and reclassification into an MOS in which the Army had a requirement.  The MMRB directed an MEB for the applicant and that regardless of the MEB findings and recommendations, his case be forwarded to a PEB and, if appropriate, issuance of a less-restrictive permanent physical profile.  The findings and recommendations of the MMRB were approved by the convening authority.

6.  A Standard Form 88, dated 12 November 1991, shows an MEB evaluation was conducted for pain and swelling of the applicant's left foot.  His attending physician recommended a physical profile and disposition by an MEB.

7.  On 6 December 1991, he was evaluated by an MEB for:

* chronic low back pain
* mid-thoracic pain
* painful left foot
* painful left ankle

8.  His MEB noted:

* he began experiencing chronic pain in the left foot, mostly in the arch and heel area while in basic training
* he noted discomfort in his left ankle and he had several fairly mild sounding injuries to his left ankle
* his back and thoracic condition began in June 1990 after being in a motor vehicle accident while serving with his unit

9.  The MEB also noted he was unable to perform in his MOS and he had not improved in spite of physical therapy, medications, and prolonged rest.  The MEB determined he was unfit and referred his case to a PEB and the Chief, Internal Medicine Service, to determine if he had:

* irritable bowel syndrome
* hypertension
* reactive airway disease

10.  On 11 December 1991, the findings and recommendations of the MEB were approved by the Deputy Commander for Clinical Services.

11.  On 19 December 1991, the applicant disagreed with the findings and recommendations of the MEB and submitted statements in which he indicated he did not receive physical therapy for his broken ankle until a year later.  He also requested a personal appointment with the Deputy Commander for Clinical Services.

12.  On 17 January 1992, a request to extend the applicant beyond his ETS for processing through the Army Physical Disability Evaluation System (PDES) was initiated with the applicant's concurrence.   The request was approved on 3 February 1992.

13.  The addendum to his MEB shows he was evaluated on or about 2 June 1992 and the following prognoses were given:

	a.  his hypertension would remain well controlled if he was compliant with medications and

	b.  his other complaints of urinary urgency was undergoing evaluation and his chronic post-traumatic headaches, chronic post-traumatic musculoskeletal neck pain, chronic mild musculoskeletal lumbar pack pain, bilateral pes cavus deformity severity, paresthesias of the left extremities, and mildly-elevated serum glutamate pyruvate transaminase (liver enzymes) were expected to remain stable and possibly improve once he was out of the military.

14.  On 2 July 1992, the PEB rated the applicant's left ankle with early post-traumatic osteoarthritic visible on x-ray but no visible functional deficit as 
10-percent disabling.  His other conditions were not rated and found fitting.  His DA Form 199 shows the PEB determined his medical and physical impairments prevented reasonable performance of the duties required by his grade and MOS.  The PEB recommended his separation with severance pay.

15.  On 24 July 1992, the applicant non-concurred with the findings and recommendations of the PEB but waived his right to a formal hearing and elected not to submit an appeal.

16.  On 28 July 1992, the PEB findings and recommendations were approved.

17.  On 11 September 1992, the applicant was honorably discharged due to a physical disability with severance pay.

18.  The applicant provided copies of his:

	a.  Standard Form 519-B, dated 24 May 1991, that shows his x-ray comparison revealed a degenerative change of the ankle with no acute fractures identified;

	b.  VA Form 21-6796, dated 16 September 1992, that shows he received a 20-percent disability rating from the VA for hypertension and degenerative joint disease, left ankle; and

	c.  VA Form 10-1158 that shows he was seen at the Austin, TX, VA Outpatient Clinic on 30 October and 14 December 1992 for unspecified conditions.

19.  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.

	a.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

	b.  The medical treatment facility commander with primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to an MEB.  Those members who do not meet medical retention standards are referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

20.  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 or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

21.  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.

22.  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.  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.  Furthermore, unlike the U.S. 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.  The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's physical disability evaluation was conducted in accordance with applicable law and regulations.  His medical conditions were evaluated and only his left ankle with early post-traumatic osteoarthritis changes visible on x-ray but no functional deficit was found to be unfitting and rated as 10 percent disabling.

2.  The Army must find that a Soldier is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the Army PDES.  A higher rating by the VA does not establish error or injustice on the part of 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.

3.  In view of the evidence in this case, there is an insufficient basis for granting him 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 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)                                         AR20150005550



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150005550



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1