IN THE CASE OF:    

		BOARD DATE:  21 July 2015	  

		DOCKET NUMBER:  AR20150007033 


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 earlier request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect his primary specialty as area of concentration (AOC) 11A (Infantry Officer), his date of placement on the Temporary Disability Retired List (TDRL) as 31 December 2008, his promotion to the rank of major, and amendment of his permanent disability retirement rating to match his Department of Veterans Affairs (VA) rating of 70 percent.

2.  The applicant states:

* his previous request to the Board resulted in overturning the May 2008 physical evaluation board (PEB) decision and placing him on the TDRL effective 23 September 2008, which needs further correcting to show the effective date as 31 December 2008
* he originally out-processed from the Army on 31 December 2008
* Defense Finance and Accounting Service (DFAS) calculations show he ought to have those extra days from 23 September 2008 through 31 December 2008 added to his time in service
* he has not received final retired pay due to the way his medical retirement was handled since official orders were cut in November 2014; thus he requests an expedited correction to alleviate his financial hardship
* his primary specialty is listed on his DD Form 214 as AOC 35D (All Sources Intelligence Officer), but should be AOC 11A
* his last Board request to amend this to AOC 11A was ignored
* the only course he attended or graduated from was the Infantry Officer Basic Course
* he was made promotable in November 2008
* considering all the inaccuracies involving his original separation he requests the Board do the right thing and advance his rank to major for retirement
* in December 2013, his VA rating was increased to 70 percent, yet his PEB rating is lower
* he doesn't understand the rating differences and believes his PEB rating should be raised to 70 percent

3.  The applicant provides DFAS correspondence with his Member of Congress.

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 AR20130022069 on 11 September 2014.

2.  The applicant advanced the argument that his original request for a correction of his AOC was not previously addressed.  He also provided DFAS correspondence pertaining to his separation date.  This argument and evidence warrant consideration by the Board at this time.

3.  After nearly 4 years of prior enlisted service in the Regular Army, the applicant was honorably released from active duty in November 1996.  Having received a Reserve Officers' Training Corps scholarship to the University of Texas at Arlington in 1999, he was subsequently commissioned as a second lieutenant in the U.S. Army Reserve with concurrent call to active duty effective 15 December 2001.

4.  His DA Form 1059 (Service School Academic Evaluation Report) shows he attended and passed the Infantry Officer Basic Course at the U.S. Army Infantry School, Fort Benning, GA, from 7 July 2002 through 1 November 2002.

5.  He served in Iraq from 31 May 2003 through 7 April 2004.  His DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 1 December 2003 through 5 July 2004 shows his rank as first lieutenant with a date of rank (DOR) of 1 June 2003.  This OER lists his branch as infantry, but shows his principal duty title as Assistant Brigade S-2, listing his significant duties as assistant intelligence officer of a digitally-equipped armor brigade combat team within a mechanized infantry 
division deployed in support of Operation Iraqi Freedom.  His rater addressed his future potential by stating he should be promoted to captain and sent to the Military Intelligence (MI) Captains' Career Course.

6.  His records contain four subsequent OERs.  The OER covering the period 6 July 2004 through 31 December 2004 shows his branch as MI, his AOC as 35D (All Source Intelligence Officer), and his principal duty title as Brigade Assistant S-2.  The OER covering the period 1 January 2005 through 13 June 2005 shows his branch as MI, his AOC as 35D, and his principal duty title as Assistant Brigade S-2 (Intelligence).

7.  U.S. Army Human Resources Command (HRC) Order Number 075-045, dated 16 March 2005, promoted him to the rank of captain in the infantry branch with an effective date of 1 April 2005.

8.  His OER covering the period 14 June 2005 through 13 June 2006 shows his branch as MI, his AOC as 35D, and his principal duty title as Assistant Professor of Military Science with duty at the University of Texas at Arlington.  The final available OER in his records, covering the period 14 June 2006 through 13 June 2007, likewise shows his branch as MI, his AOC as 35D, and his principal duty title as Assistant Professor of Military Science with duty at the University of Texas at Arlington.  All available OERs were signed and dated by the applicant, concurring with the administrative data contained therein.

9.  In June 2007, the applicant submitted a request for unqualified resignation which was eventually approved for a scheduled separation date of 1 May 2008.  Prior to his 1 May 2008 scheduled date of unqualified resignation, medical officials determined he did not meet medical retention standards due to post-traumatic stress disorder (PTSD), lower back pain, and left knee pain; thus he was referred to a medical evaluation board (MEB) and subsequent physical evaluation board (PEB).

10.  His Officer Record Brief (ORB), dated 12 March 2008, shows his control branch as MI, his basic branch as MI, his prior branch as infantry, and his projected career management field as AOC 35D.

11.  Although his military records contain no documentation referencing a voluntary or involuntary branch transfer, a review of the Total Army Personnel Data Base (TAPDB) shows the applicant's branch as MI and his primary AOC as 35D.

12.  He was reassigned to the 1st Warrior Transition Battalion, Fort Hood, TX, to receive treatment for his medical conditions and await the outcome of the PEB.  A memorandum from the Commandant of Cadets submitted with his packet to the PEB offers observations of the applicant's duty performance starting in November 2005.  The memorandum details how the applicant assumed the duties of the battalion executive officer in December 2005 and was eventually removed from that position due to his numerous deficiencies and used sparingly as a special projects officer.  The Commandant of Cadets opined the applicant did not have the physical or mental ability to perform as a leader and a mentor and was unable to perform the duties expected of his grade and branch.

13.  Despite the recommendations of the MEB, the informal PEB found the applicant fit for duty.  He appealed the decision and appeared with counsel at a formal hearing before the PEB.  The formal PEB convened on 11 June 2008 and upheld the finding of fit for duty.  The U.S. Army Physical Disability Agency (USAPDA) approved the PEB findings on 1 July 2008.

14.  Subsequent to the PEB findings, the applicant requested to withdraw his previously-approved unqualified resignation request in order to participate in the Critical Skills Retention Bonus Program.  The 7 November 2008 memorandum initiated by the applicant requesting withdrawal of his approved resignation contains the applicant's signature and signature block, wherein he listed his branch as MI.  Both his battalion and brigade commander nonconcurred with his request to withdraw his resignation, commenting he was being considered for punishment under the Uniform Code of Military Justice and that he could not accomplish the simplest of tasks.  His request to withdraw his resignation was subsequently denied by HRC.

15.  His records contain three DA Forms 4856 (Developmental Counseling Form), dated 26 September 2008, 5 November 2008, and 19 November 2008, in which he was counseled for missing work, missing scheduled appointments, and disobeying direct orders.  On 17 December 2008, the Deputy Commanding General, III Corps and Fort Hood, issued him a memorandum of reprimand as an administrative measure resulting from the repeated failures for which he was counseled between September and November 2008 and directed permanently filing the memorandum of reprimand in his Official Military Personnel File.

16.  On 31 December 2008, he was honorably discharged for miscellaneous/
general reasons under the provisions of Army Regulation 600-8-24, paragraph 
3-5.  He was credited with 7 years and 16 days of net active service during this period.  His DD Form 214 shows his rank as captain and his effective date of pay grade as 1 April 2005.

17.  There is no evidence of record and the applicant did not provide any evidence showing he was ever placed on an approved Department of Army promotion list to the rank of major.  A review of the TAPDB shows his date of eligibility for promotion as 31 March 2012.

18.  On 19 December 2013, the applicant applied to the Board requesting medical retirement by reason of permanent disability and a change to his AOC.  In processing this request, an advisory opinion was obtained from the USAPDA in which a reversal of the prior PEB determination was made.  The USAPDA recommended changing the applicant's records to reflect he was found unfit for duty due to PTSD, lumbar disease, and left knee pain.  The best evidence indicated that in 2008 his PTSD would have been rated at 30 percent, with a temporary rating of 50 percent in accordance with the VA Schedule for Rating Disabilities (VASRD), Title 38, Code of Federal Regulations, section 4.129; the lumbar disease rated at 10 percent; and the knee rated at 10 percent.  The USAPDA determined his total rating would be "50 percent + 10 percent = 55 percent +10 percent = 60 percent" with placement on the TDRL.  The VASRD requires PTSD re-evaluation within 6 months after retirement from the military and the best evidence indicates the rating for PTSD in 2009 would remain at 50 percent.  Thus, the USAPDA recommended further amending his records to reflect removal from the TDRL effective 1 April 2009 with a combined permanent disability rating of 60 percent.

19.  In ABCMR Docket Number AR20130022069, dated 11 September 2014, the Board partially approved his request and he was retroactively placed on the TDRL with an effective date of 23 September 2008.  He was then removed from the TDRL and placed on the Permanent Disability Retired List (PDRL) with an effective date of 2 April 2009 and a rating of 60 percent.  A DD Form 215 (Correction to DD Form 214) was issued on 10 November 2014, amending his type of separation to read retirement, his separation code to SFK, and his narrative reason for separation to disability, temporary.  A further DD Form 215, issued on 1 December 2014, amended his separation date to 23 September 2008 and his net active service to 6 years, 9 months, and 8 days.

20.  Based on new information received by the Board from DFAS, the 23 September 2008 effective date of his placement on the TDRL was subsequently determined to be in error.  To rectify the error, a Supplemental Record of Proceedings under ABCMR Docket Number AR20150005814, dated 14 April 2015, corrected his records to show he retired on 31 December 2008 and was placed on the TDRL effective 1 January 2009 with subsequent placement on the Retired List due to permanent disability effective 2 April 2009.  USAPDA Order D131-02, dated 11 May 2015, placed him on the TDRL effective 1 January 2009.  HRC voided the DD Forms 215 and issued a new DD Form 214 on 6 May 2015 wherein the applicant's separation date is shown as 31 December 2008, his net active service during this period as 7 years and 16 days, his type of separation as retirement, his separation code as SFK, his AOC as 35D, and his narrative reason for separation as temporary disability.  This Supplemental Record of Proceedings and subsequent issuance of a new DD Form 214 granted the applicant's requested date of placement on the TDRL and this issue will not be discussed further in this Record of Proceedings.

21.  Army Regulation 40-501 (Standards of Medical Fitness) 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.

22.  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.

23.  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.

24.  Army Regulation 614-100 (Officer Assignment Policies, Details, and Transfers) prescribes policies and procedures pertaining to the assignment, reassignment, details, and transfers of officers between commands, units, branches, specialties, and components of the Active Army, or between external military organizations.  Chapter 4 pertains to branch transfers, both voluntary and involuntary.  It states a branch transfer permanently changes a commissioned officer's branch, component, or department.  Normally, an officer will not be transferred without his or her consent.  However, an officer may be transferred involuntarily by HRC when deemed appropriate and in the best interests of the service.  Upon approval of a branch transfer, the commander of the losing branch revokes any existing assignment instructions and submits a control branch change for the individual to the TAPDB.

25.  Title 10, U.S. Code, section 14304, delineates eligibility for consideration for officer promotions.  Eligible officers will be placed in the promotion zone for that officer's grade and competitive category and will be considered for promotion to the next higher grade by a promotion board convened under section 14101 far enough in advance of completing the years of service in grade specified in the current grade table so that if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  The current grade table shows the maximum years of service for captains as 7 years time in grade.

26.  An HRC Tentative Officer Army Competitive Category (ACC) Promotion Selection Zones table lists past and future planned officer ACC promotion selection zones.  The major, ACC Board for Fiscal Year 2011 (FY11) lists above-the-zone consideration to the rank of major for captains with a DOR of 28 February 2005 and earlier, primary-zone consideration to the rank of major for captains with a DOR of 1 March 2005 through 31 December 2005, and below-the-zone consideration to the rank of major for captains with a DOR of 1 January 2006 through 18 January 2007.

27.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  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's request for reconsideration of his earlier request for correction of his DD Form 214 to reflect his AOC as 11A, promotion to major, and his disability rating as 70 percent was carefully considered.

2.  The evidence of record suggests the applicant received a branch transfer from infantry (AOC 11A) to MI (AOC 35D).  Although the specific facts and circumstances surrounding the branch transfer are not available, there is a presumption of administrative regularity.  All available evidence, including four uncontested OERs, his ORB, the TAPDB, and his own signature block refer to him as an MI officer.  His ORB specifically shows his control branch as MI and his former branch as infantry; thus there is no apparent error or injustice that requires correction.

3.  There is no evidence of record and the applicant provided no evidence corroborating his contention that he was ever selected for promotion to the rank of major.  His effective DOR to captain was 1 April 2005.  He separated from the Army on 31 December 2008 prior to the retroactive determination that the separation should have been retirement due to permanent physical disability and this date remains unchanged by his disability retirement.  He held the rank of captain for 3 years and 9 months.  A review of the TAPDB shows his date of eligibility for promotion to major as 31 March 2012.  The ACC Board primary-zone and above-the-zone consideration for promotion to major for officers in the applicant's DOR date range was in FY11, well after his Army separation.  Therefore, his request for advancement to major on the retired list should be denied.

4.  In 2014 the USAPDA found him unfit for duty due to PTSD, lumbar disease, and left knee pain retroactive to December 2008.  The best evidence, to include his 2009 VA rating, indicated that in 2008 his PTSD would have been rated at 30 percent with a temporary rating of 50 percent in accordance with the VASRD, the lumbar disease rated at 10 percent, and the knee rated at 10 percent.  The USAPDA determined his total disability rating would be "50 percent + 10 percent = 55 percent +10 percent = 60 percent" with placement on the TDRL.  The best evidence indicated the rating for PTSD in 2009 would remain at 50 percent.  Thus, it was recommended his records be further amended to reflect removal from the TDRL on 1 April 2009 with a combined permanent disability rating of 60 percent.

5.  Although he claims to have received a change to his VA Rating Decision in 2013, increasing his service-connected disability rating to 70 percent, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army.  Operating under different laws and policies, the VA does not have the authority or the responsibility to determine medical unfitness for military service.  The VA may award ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.



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 to amend the decision of the ABCMR set forth in Docket Number AR20130022069, dated 11 September 2014.



      ______ _   _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)                                         AR20150007033



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