RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            11 MARCH 2004     
	DOCKET NUMBER:   AR2003094176

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Mae M. Bullock		Member	
	Mr. Patrick H. McGann, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests physical disability retirement.

2.  The applicant states that he was discharged with a 20 percent disability rating; however, the Department of Veterans Affairs (VA) has awarded him a 40 percent disability rating for his back.  He was 40 percent disabled and should have been medically retired.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), and a copy of a VA rating decision.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 30 March 1999.  The application submitted in this case is dated 8 July 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Army for three years on 27 January 1997, and was trained as an infantryman.  While stationed in Hawaii, he injured his back on 2 February 1998 when he fell down a large gulch.  He reinjured his back in March 1998.  Medical records show that he had back surgery on 26 June 1998.  

4.  A 24 November 1998 report of medical examination shows that the applicant's physical profile serial was 1 1 3 1 1 1.  On 1 December 1998 the applicant underwent a physical examination by a Medical Evaluation Board (MEB).  The MEB narrative summary shows that the applicant had a history of low back pain ever since an injury in February 1998.  The pain was across his back with radiation to the right posterior thigh, extending down to his ankles.  The applicant tried physical therapy, traction, and medications without relief.  On 26 June 1998 he underwent a lumbar microdiskectomy where a significant L4-L5 herniated nucleus pulpous was encountered.  Postoperatively, he had some improvement in pain, but had developed further pain in the back and leg. 

5.  The examining physician indicated that the applicant continued to have constant lower back pain and leg pain, which was exacerbated by any lifting or running.  He continued to be on medications and continued to do exercises.  He stated that the applicant was severely limited by his back pain and leg pain.  He indicated that the applicant's prognosis was unclear; however, his condition was likely to be a long-term problem.  He recommended that the applicant be referred to a Physical Evaluation Board (PEB).   

6.  On 21 December 1998 a MEB recommended that the applicant be referred to a PEB because of his lumbar disk disease.  The applicant concurred.

7.  On 8 December 1998 both the applicant's platoon leader and company commander provided performance statements to the PEB, stating that the applicant's performance was outstanding, considering his limitations; and that there was a marked decline in his physical activity since his original injury.
Statements on his behalf from fellow Soldiers attest to his professionalism, outstanding performance of duty, and his physical limitations because of his back pain.

8.  On 8 January 1999 a PEB determined that the applicant was physically unfit for retention because of his condition.  The PEB recommended that the applicant receive a 10 percent disability rating for low back pain, VA Code 5295, and a    10 percent rating for anterior tibial nerve partial paralysis, moderate, VA Code 8523, for a combined rating of 20 percent and that he be separated with severance pay.  The applicant disagreed and requested a formal hearing; however, on 19 January 1999 he reconsidered, waived his scheduled formal hearing, and concurred with the 20 percent disability rating recommended by the PEB.  On 20 January 1999 the recommendation of the PEB was approved. 

9.  The applicant was discharged on 30 March 1999 with a 20 percent disability rating.  

10.  On 7 November 1999 the VA awarded the applicant a 40 percent service connected disability rating for low back pain and herniated nucleus pulposis status post laminectomy.  

11.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

12.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.
 
13.  Congress established the Veterans Affairs Schedule for Rating Disabilities (VASRD) as the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of disease and injuries encountered as a result of, or incident to, military service.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.        

14.  The VASRD provides ratings ranging from 0 percent to 40 percent for lumbosacral strain (VA Code 5295), with a 10 percent disability rating for characteristic pain on motion.  It provides for ratings ranging from 0 percent to   30 percent for paralysis of the anterior tibial nerve (VA Code 8523), with a          10 percent disability rating for moderate paralysis.

15.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

16.  Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (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 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.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, 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.  The 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.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension.  By law, a veteran can only be compensated once for a disability.  If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

DISCUSSION AND CONCLUSIONS:

1.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and rated at the time of his discharge.  His disability was properly rated in accordance with the VA Schedule for Rating Disabilities.  His separation with severance pay was in compliance with law and regulation.          
  
2.  The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.  The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 March 1999; therefore, the time for the applicant to file a request for correction of any error or injustice expired on         29 March 2002.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JNS __  __MMB__  __PHM __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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 for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		_____John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR2003094176	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040311	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.