IN THE CASE OF: BOARD DATE: 12 November 2015 DOCKET NUMBER: AR20150001980 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, in effect, correction of his records to show he retired by reason of physical disability with a disability rating of 50 percent. 2. The applicant states he sent his request to the Physical Disability Board of Review (PDBR), Air Force Review Boards Office, but he should have sent it to the Army. His original disability rating from the Department of Veterans Affairs (VA) was 10 percent, but he believes he should have received a 50-percent rating from the Army. 3. The applicant provides: * two letters from the PDBR * U.S. Army Human Resources Command Orders C-07-110430, dated 21 July 2011 * U.S. Army Human Resources Command memorandum, dated 18 July 2008 * VA Form 21-526 (Veteran's Application for Compensation and/or Pension), dated 27 April 2008 * medical records in excess of 50 pages 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 18 July 1978 and was honorably released from active duty on 10 July 1992 under the Enlisted Voluntary Early Transition Program and transferred to the U.S. Army Reserve Control (USAR) Group (Reinforcement) (a subcategory of the Individual Ready Reserve (IRR)). He reenlisted in the USAR IRR on multiple occasions. 3. U.S. Army Human Resources Command Orders M-07-101238, dated 12 July 2004, relieved him from his Reserve Component status in the USAR IRR and ordered him to report no later than 19 September 2004 for a period of active duty not to exceed 25 days for mobilization processing. 4. His DA Form 1059 (Service School Academic Evaluation Report), dated 21 October 2004, shows he attended the Fire Control Repair Class 501-05 as a student at Aberdeen Proving Ground, MD, from 6 October 2004 through 31 October 2004. 5. U.S. Army Garrison, Aberdeen Proving Ground, Orders 300-28, dated 26 October 2004, reassigned him to Fort Dix, NJ, on or about 31 October 2004 for deployment in support of Operation Iraqi Freedom. 6. His DA Form 2173 (Statement of Medical Examination and Duty Status) dated 5 November 2004, shows he was injured on 19 October 2004 while serving on active duty orders and performing physical training. He developed severe lower back pain with numbness in both legs from the injury. 7. A DA Form 3349 (Physical Profile), dated 1 November 2004, shows he was assigned a temporary physical profile rating of 3 for his lower back pain with an expiration date of 1 February 2005. 8. The applicant's VA Form 21-526 shows that by his own admission he left active duty on 18 December 2004. His available records do not contain release from active duty orders. U.S. Army Human Resources Command Orders  B-10-506596, dated 18 October 2005, promoting the applicant to the rank of staff sergeant show he had returned to his former status in the USAR IRR by that point. 9. On 19 May 2006, he underwent a retention physical examination. A memorandum from the Federal Strategic Health Alliance, dated 21 August 2006, conveying the results of his retention physical examination stated he was physically fit for retention under the provisions of Army Regulation 40-501 (Standards of Medical Fitness). Physical abnormalities were noted; however, there were no documented limitations for physical profiling at that time. The noted abnormalities included a history of hypothyroidism and "tennis elbow" with no limitations. 10. A Standard Form 507(Clinical Record) report on functional capacity, dated 23 April 2007, shows he was diagnosed with osteoarthritis of the spine and hypothyroidism which were deemed to contribute to his permanent physical limitations. 11. On 30 May 2007, he was issued a permanent physical profile with a rating of 3 for his chronic lower back pain. A Standard Form 507, dated 30 May 2007, states he did not meet medical retention standards in accordance with Army Regulation 40-501, paragraph 3-39h, due to chronic lower back pain. 12. The applicant provided an unsigned copy of his Veteran's Application for Compensation and/or Pension submitted to the VA on 27 April 2008. The VA rating decision was not provided by the applicant and is not available for review, although he stated he received a 10-percent disability rating. 13. On 18 July 2008, he was notified by the U.S. Army Human Resources Command of his failure to meet medical retention standards of Army Regulation 40-501, paragraph 3-39h, due to chronic lower back pain. He was provided four options for disposition in his case: * elect to be discharged from the USAR * elect transfer to the USAR Retired Reserve if eligible for retirement based on total qualifying years of service * elect consideration by a non-duty related physical evaluation board, which is limited to fitness determination * elect consideration by a medical evaluation board (MEB), which is limited to conditions or injuries that occurred or were aggravated while on active duty orders 14. On 19 July 2008, he elected transfer to the USAR Retired Reserve and acknowledged with his signature that he understood his transfer to the Retired Reserve did not entitle him to pay, allowances, or other benefits unless he was otherwise entitled to them by law. 15. A memorandum from the U.S. Army Human Resources Command, dated 24 September 2008, states the Command Surgeon's Office determined the applicant did not meet medical retention standards for continued military service and his election of options would be reviewed to determine his future status. 16. U.S. Army Human Resources Command Orders C-07-110430, dated 21 July 2011, reassigned the applicant from the USAR IRR to the Retired Reserve effective 11 January 2008. 17. In October 2014, the applicant applied to the PDBR, apparently requesting an increased disability rating. His application to the PDBR is not available for review. On 5 November 2014, the PDBR advised the applicant via letter that his request was administratively closed without action. The letter states Department of Defense Instruction 6040.44 outlines eligibility for consideration and advises that "covered individual" status applies to those individuals who were separated after 11 September 2001 but prior to 31 December 2009 due to unfitness for continued military service resulting from a physical disability under Title  10, U.S. Code, chapter 61, with entitlement to disability severance pay. No records were found to establish he was found unfit and discharged from the Army pursuant to chapter 61. Rather, he was medically disqualified for continued service and transferred to the USAR Retired Reserve. 18. Army Regulation 40-501 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 VA Schedule for Rating Disabilities (VASRD). a. Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals in paragraph 3-2. Paragraph 3-1 states these medical conditions and physical defects, individually or in combination, are those that: (a) significantly limit or interfere with the Soldier's performance of his or her duties, (b) may compromise or aggravate the Soldier's health or well-being if he or she were to remain in military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring), (c) may compromise the health or well-being of other Soldiers, and (d) may prejudice the best interests of the government if the individual were to remain in military service. b. Paragraph 3-39 (Spine, Scapulae, Ribs, and Sacroiliac Joints) states that among the causes for referral to an MEB are nonradicular pain involving the cervical, thoracic, lumbosacral, or coccygeal spine – whether idiopathic or secondary to degenerative disc or joint disease – that fails to respond to adequate conservative treatment and necessitates significant limitation of physical activity. 19. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB * receive a permanent physical profile rating of 3 or 4 and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, U.S. Army Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the physical evaluation board (PEB). A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are retired, depending on the severity of the disability and length of military service. Individuals who are separated receive a one-time severance payment, while veterans who retire based on disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. d. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 20. Army Regulation 635-40 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. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Paragraph 3-4 states under the laws governing the Army PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits. a. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. b. The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 21. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers. Chapter 6 (Transfer to and from the Retired Reserve) states assignment to the Retired Reserve is authorized for Soldiers who: * are entitled to receive retired pay from the U.S. Armed Forces because of prior military service * have completed a total of 20 years of active or inactive service in the U.S. Armed Forces * are medically disqualified for active duty resulting from a service-connected disability * were appointed based on the condition the Soldier immediately apply for transfer to the Retired Reserve * reached the age of 37, completed a minimum of 8 years of qualifying Federal service and served at least 6 months of active duty in time of war or national emergency * completed 10 or more years of active Federal commissioned service * are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed 22. 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. 23. 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. 24. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for correction of his records to show he received a physical disability retirement from the Army with a disability rating of 50 percent was carefully considered. 2. The applicant developed lower back pain after performing physical training while serving on active duty. A line-of-duty investigation, dated 5 November 2004, determined his injury was incurred in the line of duty. Nevertheless, the applicant did not receive a permanent physical profile rating of 3 or 4 while serving on active duty orders, requiring his referral to an MOS Medical Retention Board. 3. It was not until May 2007, while assigned to the USAR IRR, that he was assigned a permanent physical profile rating of 3 and deemed not to meet medical retention standards. 4. In July 2008, the U.S. Army Human Resources Command notified him of his failure to meet medical retention standards and informed him of his options. He elected transfer to the USAR Retired Reserve on 19 July 2008. On 21 July 2011, he was retroactively transferred to the Retired Reserve due to medical disqualification with an effective date of 11 January 2008. 5. The VA rating decision was not provided by the applicant and is not available for review, although it appears he filed a VA claim in April 2008 and he stated he received a 10-percent disability rating. The fact that the VA granted him a service-connected disability rating for a medical condition after his release from active duty does not prove an error on the part of the Army at the time of his separation. A VA service-connected disability rating does not establish entitlement to a "medical discharge" or "medical retirement" from the Army. The VA awards ratings because a medical condition is "service connected" and affects the individual's civilian employability. Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 6. The applicant was appropriately transferred to the Retired Reserve per his election after notification of failure to meet medical retention standards while assigned to the USAR IRR. 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) AR20150001980 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001980 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1