BOARD DATE: 5 April 2016 DOCKET NUMBER: AR20150001311 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 5 April 2016 DOCKET NUMBER: AR20150001311 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. BOARD DATE: 5 April 2016 DOCKET NUMBER: AR20150001311 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 record by changing his disability discharge with severance pay to a disability retirement. 2. The applicant states, in effect: * he feels the Army rushed its decision to discharge him with severance pay; he should have been retired based on having severe post-traumatic stress disorder (PTSD) as well as disc problems * he asserts he was not properly evaluated when he underwent the medical evaluation board (MEB)/physical evaluation board (PEB) process * his conditions have gotten worse since his discharge; he now has a 90 percent disability rating from the Department of Veterans Affairs (VA) * he is unable to keep a job because of his neck and back problems, as further aggravated by his PTSD * he is hoping to be able to obtain healthcare and on-post privileges 3. The applicant provides no additional documentary evidence. 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 2 August 2000. He served in a variety of positions and rose to the rank of staff sergeant (SSG)/E-6. He was deployed to Iraq from 28 April 2003 to 26 April 2004. 3. On 26 June 2006, his commander provided a commander's performance statement as part of the applicant's MEB/PEB process. a. In his memorandum, the commander specifically identified the applicant's medical condition of cervical radiculopathy (pain radiating from the neck) as causing him to be unable to fulfill the physical requirements of his military occupational specialty. b. He indicated the applicant was well-motivated and displayed the leadership qualities expected of a noncommissioned officer of his grade and experience. He had been a solid performer despite his diminished capabilities. 4. On 7 July 2006, an MEB found he had three medical conditions which failed retention standards, and forwarded his case to a PEB for a fitness determination. a. No behavioral health conditions were identified. b. The applicant concurred with the MEB results. c. The three conditions were: * right cervical (neck) radicular pain * cervical spine neuroforaminal stenosis (refers to compression of a spinal nerve as it leaves the spinal canal through the opening between the vertebrae, known as the foramen) * C3-C4 disc protrusion (located in the neck) 5. On 21 July 2006, a PEB determined the applicant was unfit for continued military service and recommended a disability rating of 10 percent for chronic neck pain. The PEB further recommended separation with severance pay. No behavioral health conditions were identified. On 4 July 2006, the applicant concurred with the PEB's findings and waived his right to a formal hearing. 6. He was honorably discharged on 24 September 2006. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received disability severance pay. The narrative reason for separation states disability, severance pay. 7. On 19 February 2015, a staff member of the Army Review Boards Agency requested he provide documentary evidence of his PTSD. As of February 2016, he had not responded. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Chapter 3 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. b. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. 2. 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 in the Army rating. a. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. b. The VA does not have 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. c. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. 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. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant requests, in essence, the reversal of his current separation and, in its place, to be retired due to physical disability as a result of PTSD and cervical spine pain. He essentially contends, given the VA's award of a 90 percent disability rating for unspecified service-connected medical issues, the VA's determination should be extended retroactively to his active service. a. With regard to PTSD, he provides no evidence he suffered from this condition prior to being separated. Additionally, his commander makes no mention of behavioral health concerns in his commander's statement prepared for the MEB/PEB. b. As to his orthopedic conditions, he mentions both back and neck pains, but only neck conditions were identified at the time of his MEB and PEB. Additionally, based on all available medical evidence, the PEB found that a 10 percent disability rating most closely aligned with the state of his condition. 2. The applicant indicates the VA has awarded him a disability rating of 90 percent. a. The Army disability rating is intended to compensate the individual for the loss of a military career and is based on medical conditions which were caused by or had their onset during military service. By regulation, a diagnosis of personality disorder renders the Soldier administratively unfit rather than being unfit because of physical illness or medical disability. b. An award of a rating by the VA does not establish an error by the Army. The findings of the VA as to service-connected conditions are not binding on the Army and do not require a reassessment of earlier determinations of unfitness. c. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. d. The VA may award ratings because a medical condition was related to military service (service-connected) and now affects the individual's civilian employability. 3. Based on the foregoing, there does not appear to be sufficient evidence to support granting the requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150001311 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150001311 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2