IN THE CASE OF: BOARD DATE: 5 November 2015 DOCKET NUMBER: AR20150002867 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 military records to show he was medically retired. 2. He states he was medically discharged with severance pay and a 20 percent (%) disability rating. He adds that he received an 80% disability rating from the Department of Veterans Affairs (VA). He also states that the decision to medically separate him from the Army was done in haste and only one medical condition was considered. 3. He provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * VA Rating Decisions, dated 15 April 2014 * VA letter, dated 2 May 2014 * Extensive VA Medical Records 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 (RA) on 2 August 2007 in military occupational specialty 11B (Infantryman). He served in Afghanistan from 16 January to 29 December 2009. 3. His record is void of any medical documentation created during his service in the RA. 4. On 18 August 2011, a Physical Evaluation Board (PEB) convened in Washington, DC and considered the following conditions: a. Mild laxity left knee referred to the PEB as patellofemoral syndrome of the left knee and chrondromalacia patella of the left knee and claimed as patellar tendinitis left knee. b. Post-traumatic chondromalacia left knee referred to the PEB as patellofemoral syndrome of the left knee and chrondromalacia patella of the left knee and claimed as patellar tendinitis left knee. 5. The PEB determined he was physically unfit to perform the functional activities of an infantryman and recommended that he be separated with severance pay based on a 10% disability rating for each condition and a combined disability rating of 20%. 6. The PEB also considered the applicant's conditions of: Mood disorder due to a general condition – chronic pain; anxiety disorder, not otherwise specified (of post-traumatic origins); mid back pain; headache; insomnia; and low back pain. The PEB determined that these conditions met medical retention standards and were not listed on the physical profile as limiting any of his functional activities, were not commented upon by the commander as hindering the applicant's performance, and the case file contain no evidence that these conditions independently, or combined, rendered the applicant as unfit for his assigned duties. 7. The applicant initialed the PEB proceedings in block 13 (Election of Member) indicating "I concur" and signed the form on 29 August 2011. Additionally, the counselor signed this form on the same date indicating that he had informed the Soldier of the findings and recommendations of the PEB and of his legal rights. 8. On 20 December 2011, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) chapter 4, with disability severance pay. He was credited with completing 4 years, 4 months, and 19 days of service. He received $29,379.60 in disability severance pay. 9. The VA Rating Decision, dated 15 April 2014, and a letter from the VA, dated 2 May 2014, show the applicant received a combined service-connected disability rating of 80% for the following: * tinnitus, 10% effective 10 October 2013 * post-traumatic stress disorder (PTSD) 30% effective 21 December 2011, increased to 50% effective 10 October 2013 10. Army Regulation 635-40 states that the findings and recommendations of the informal PEB are recorded on a DA Form 199 (PEB Proceedings). Block 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations. These include the following: * Concurrence with the findings and recommendations and waiver of a formal hearing * Nonconcurrence with the findings and recommendations; submission of a rebuttal explaining the Soldier's reasons for nonconcurrence and waiver of a formal hearing * Demand a formal hearing with or without personal appearance * Choice of counsel if a hearing is demanded * Soldiers indicate their elections by a checkmark in block 13 and sign and date the original and medical treatment facility copies 11. The same regulation states the PEB liaison officer will counsel the Soldier and make him or her fully aware of the election options available, the processing procedures, and the benefits to which he/she will be entitled if separated or retired for physical disability. 12. 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's 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. Furthermore, unlike the U.S. 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 U.S. 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. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows on 18 August 2011, a PEB convened and found the applicant unfit for duty due to mild laxity left knee and post-traumatic chondromalacia left knee. The PEB determined he was physically unfit to perform the functional activities of an infantryman and he was subsequently separated with severance pay based on a combined disability rating of 20%. 2. There is no evidence to support his contention that his medical separation was done in haste or the PEB did not consider "all" of his medical conditions. The PEB Proceedings show the applicant's condition of mood disorder, anxiety disorder, mid back pain, headache, insomnia, and low back pain were also considered. The PEB determined that the case file contain no evidence that these conditions independently, or combined, rendered the applicant as unfit for his assigned duties. 3. The evidence of record shows he signed the PEB Proceedings concurring with the board's findings. There is no evidence and he has not provided any to show that his disability rating was incorrect and/or he should have been medically retired. 4. The applicant submitted a VA rating decision showing he was awarded an 80% disability rating for PTSD and tinnitus. However, the VA does not determine medical unfitness for further military service. The VA awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency. 5. An award of a VA rating does not establish entitlement to medical retirement or separation. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service connected. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. 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 that 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) AR20150002867 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002867 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1