IN THE CASE OF: BOARD DATE: 12 November 2014 DOCKET NUMBER: AR20140005562 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 change of his honorable discharge to a medical disability retirement. 2. The applicant states: a. He was medically discharged from military service on 6 October 2006 for bilateral knee pain. He accepted disability severance pay as stated on his DD Form 214 (Certificate of Release or Discharge from Active Duty). He had been evaluated and received an overall combined rating of 50 percent (%) from the Department of Veterans Affairs (VA) on 23 June 2010 for obsessive compulsive disorder, degenerative joint disease of lumbosacral spine (spondylosis), degenerative joint disease of the left knee, and degenerative joint disease of the right knee, that occurred while he was serving on active duty. b. As of 20 March 2014, he had no knowledge of how to correct military records for a change of status to retired status. He was recently advised by a veterans assistant representative at a VA hospital about the possibility of being able to change the status or he would have tried years ago. He is requesting a medical disability retirement due to his combined rating of 50% from the VA and so he can obtain TRICARE coverage. He has served the Army with great pride and dedication and was enlisted indefinite until his injury tore him from the service against his will. 3. The applicant provides copies of the following: * DD Form 214 ending on May 2003 * DD Form 4/1 (Enlistment/Reenlistment Document – Armed Forces of the United States) * Medical Evaluation Board (MEB) – Medical Record Report * DA Form 3947 (MEB Proceedings) * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * DD Form 214 ending on 5 October 2006 * Recorder of Deeds order * 2010 VA Rating Decisions * two letters from the VA and Army Review Boards Agency (ARBA) 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations. 2. The applicant enlisted in the Regular Army (RA) on 25 January 1994. He was awarded military occupational specialty (MOS) 11B (infantryman). He was released from active duty on 24 June 1997. 3. He again enlisted in the RA on 25 February 1998, reenlisted on 20 April 2000, and reenlisted on 2 January 2005 for an indefinite period. 4. An MEB Medical Record Report showed he underwent an examination on 10 August 2006 for bilateral knee pain. The report stated he was currently unable to carry any load and ambulate even a short distance without significant pain. His MOS was 11B and he was unable to fulfill the duties required by the Army for that MOS. He was referred to an MEB. 5. On 17 August 2006, an MEB convened and considered his medical condition of bilateral knee pain. He was referred to a PEB. 6. On 13 September 2006, an informal PEB convened and considered his medical condition of chronic bilateral knee pain of 8 years duration. The PEB noted his knee pain and profile prevented effective duty in his MOS. The PEB found him medically unfit to perform the duties required of his rank and primary specialty. The PEB recommended he be separated with a combined rating of 10% with severance pay. 7. On 14 September 2004, he waived his right to a formal hearing and concurred with the findings and recommendations of the PEB. The PEB was approved on the same day. 8. He was honorably discharged on 5 October 2006 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B(13), by reason of disability with severance pay. He was credited with completing: * 8 years, 7 months, and 11 days of net active service * 3 years and 5 months of prior active service 9. He provided copies of the following: a. A Recorder of Deeds orders which shows he recorded his discharge with the County of Columbia on 16 October 2006. b. A VA Rating Decision, dated 31 August 2010, which shows he was awarded a combined 50% service-connected disability rating for obsessive compulsive disorder (30%), degenerative joint disease of lumbosacral spine (10%), degenerative joint disease of the left knee (10%), and degenerative joint disease of the right knee (10%) with an effective date of 23 June 2010. The decision also advised him the service connection for obsessive compulsive disorder had been established as directly related to military service. An evaluation of 30% was granted whenever there is occupational social impairment. Service treatment records were negative for complaints of, treatment for, or diagnosis of any mental disorders. However, his DD Form 214 for the second period of active duty service confirmed he received the Combat Infantryman Badge; therefore, exposure to stressor was conceded. c. A letter, dated 13 March 2013, wherein the VA advised him of the removal of his spouse from his award effective 29 January 2013, the date of his divorce. d. A letter, dated 9 April 2014, wherein ARBA advised him that while the ABCMR was considering his case he had the option of applying to the Department of Defense Physical Disability Board of Review (PDRB) and the decision of either board was final. If he was denied by one of the Boards, he could not apply to the other Board for the same issue. His application would be put on hold for 15 days from the date of that letter to await his decision. The letter is noted "as of 30 April 2012, the applicant had not responded." 10. Army Regulation 635-40, in effect at the time, set forth policies for the disposition of Soldiers found unfit because of physical disability reasonably perform the duties of his/her office, grade, rank, or rating. a. The Physical Disability Evaluation System assessment process involved two distinct stages: the MEB and the PEB. The purpose of the MEB was to determine whether the service member's injury or illness was severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB was an administrative body possessing the authority to determine whether a service member was fit for duty. A designation of "unfit for duty" was required before an individual can be separated from the military because of an injury or medical condition. b. The mere presence of a medical impairment did not in and of itself justify a finding of unfitness. In each case, it was necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier could reasonably be expected to perform because of his/her office, grade, rank, or rating. Reasonable performance of the preponderance of duties would invariably result in a finding of fitness for continued duty. A Soldier was physically unfit when a medical impairment prevented reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 11. 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. The VA has neither the authority nor the responsibility for determining physical fitness for the military service. It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. DISCUSSION AND CONCLUSIONS: 1. The applicant served continuously in the RA from February 1998 to October 2006. In September 2006, a PEB found him medically unfit to perform the duties required of his rank and primary specialty due to chronic bilateral knee pain. The PEB recommended he be separated with a combined rating of 10% with severance pay. He concurred and he was separated accordingly on 5 October 2006. 2. On 23 June 2010, he was awarded a combined 50% service-connected rating from the VA for obsessive compulsive disorder, degenerative joint disease of lumbosacral spine, degenerative joint disease of the left knee, and degenerative joint disease of the right knee. 3. There is no evidence and he did not provide sufficient evidence showing that any condition except his knee pain prevented him from performing his duties and required physical disability processing during his period of active duty. The Army rates only conditions determined to be physically unfitting that were incurred in or aggravated during the period of service. 4. The award of a VA rating does not establish entitlement to a medical discharge and/or medical retirement from the Army. Operating under its own policies and regulations, the VA awards rating because a medical condition is related to service (service connected). In this case, he was evaluated and is being compensated for his service-connected medical conditions by the VA; however, there is no indication he suffered a disabling condition while in a qualifying active duty status that would have supported his processing for retirement through Army medical channels. 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) AR20140005562 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140005562 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1