IN THE CASE OF: BOARD DATE: 11 February 2016 DOCKET NUMBER: AR20150005770 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, reconsideration of her earlier request for correction of her records to increase her disability rating and show she retired due to physical disability. 2. The applicant states: * she wants her honorable discharge changed to disability retirement * she didn't say she was in constant pain when she went to the medical hearing board * she is now permanently and totally disabled * she served for 18 years and planned to retire * the Army gave her a disability rating of 10 percent and $20,000.00 in severance pay and kicked her out 3. The applicant provides: * a letter from the Department of Veterans Affairs (VA), dated 23 March 2015 * correspondence from a Member of Congress, dated on or about 12 February 2015 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070008599 on 27 November 2007. 2. The VA letter is new evidence that will be considered by the Board at this time. 3. The applicant was born on 8 August 1964. Having prior active service in the Regular Army and inactive service in the U.S. Army Reserve, she enlisted in the Army National Guard (ARNG) on 20 May 1992. She was promoted to the rank/pay grade of sergeant/E-5 effective 6 November 2000. 4. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 12 June 2005, shows she fell from a truck on which she was performing preventive maintenance checks and services and injured her head, neck, and back. 5. On 20 January 2007, a medical evaluation board (MEB) diagnosed her with chronic neck pain, right clavicle pain, and chronic lower back pain. The MEB recommended her referral to a physical evaluation board (PEB). On 6 February 2007, she concurred with the MEB findings and recommendation. 6. On 12 February 2007, an informal PEB found her physically unfit due to: * chronic neck pain due to degenerative disc disease without significant motor neurological deficit, range of motion limited by pain, and positive tenderness and spasms * chronic right clavicle pain post clavicle fracture 7. Her low back pain condition was found separately medically unfitting. 8. Records show she injured her back while in the performance of her civilian occupation and that she mobilized with the lower back pain with no evidence that the lower back pain interfered with the performance of her military duties. The PEB recommended her separation with severance pay (10 percent). 9. On 14 February 2007, she non-concurred with the PEB findings and recommendation. She demanded a formal hearing with a personal appearance and she requested legal counsel at U.S. Government expense. 10. On 7 March 2007, a formal PEB affirmed the findings of the informal PEB determination that the applicant was physically unfit and recommended a 10-percent disability rating for chronic neck pain due to degenerative disc disease. The formal PEB directed her separation with severance pay. Further, the proceedings found that based on her personal testimony, the applicant continued to perform her military duties driving a 5-ton truck after the first injury in January 2003 and then further aggravated her condition in a civilian motor vehicle accident in September 2004. The PEB noted her noncommissioned officer evaluation reports showed her duty performance was satisfactory during the time period under review. 11. On 15 March 2007, she non-concurred with the formal PEB findings and recommendations and submitted a rebuttal to the PEB. Her rebuttal statement is not available for review. 12. On 26 March 2007, the President of the PEB concurred with her argument that she was not able to perform her duties as a motor transport operator (military occupational specialty 88M2O) since June of 2005 when she injured her neck and clavicle. The PEB President stated the PEB Proceedings, dated 7 March 2007, would be corrected and forwarded to the U.S. Army Physical Disability Agency (USAPDA) for final processing and disposition. 13. On 2 April 2007, the USAPDA reviewed the applicant's informal and formal PEB Proceedings with her rebuttal statements. The USAPDA affirmed the PEB decision to separate her with severance pay and concurred with the disability rating of 10 percent for neck pain. No evidence of error or injustice was found during the USAPDA review. 14. USAPDA Order D093-01, dated 2 April 2007, honorably discharged her as a Reserve of the Army with severance pay. She was credited with 4 years, 4 months, and 4 days of net active service. 15. On 20 April 2007, she was honorably discharged from the ARNG for being medically unfit for retention. 16. Her ARNG Retirement Points History Statement, prepared on 17 May 2007, shows she had 18 years of creditable service for retired pay. 17. In August 2007, an advisory opinion was rendered by the USAPDA. The opinion stated: a. The applicant's neck pain was rated 10-percent disabling due to tenderness to palpation and spasms with no neurological deficits. A rating of higher than 10 percent would require that the cervical flexion be less than 30 degrees or that an abnormal spinal contour existed. b. The PEB did address the two medical conditions the applicant contends were not addressed by the PEB. Her painful collarbone condition was properly evaluated and it did not meet any criteria of the established Veterans Affairs Schedule for Rating Disabilities. c. Her lower back pain was evaluated by the PEB and found not to be medically unfitting. The back injury occurred in 2003 and she continued to perform both her civilian and military duties. 18. On 27 November 2007, the ABCMR denied the applicant's request for a higher disability rating. 19. She provided a letter from the VA, dated 23 March 2015, which states her combined service-connection disability rating is 70 percent. 20. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay. 21. 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. 22. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him or her and will, if it appears as though the member is not medically qualified to perform his or her duty or fails to meet retention criteria, refer the member to an MEB. Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition. 23. Army Regulation 635-40 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. It is necessary to compare the nature and degree of the physical disability presented with the requirements of the duties the Soldier is reasonably expected to perform because of his or her office, grade, rank, or rating. 24. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, 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, due to the two concepts involved, an individual'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 the individual for VA benefits based on an evaluation by that agency. 25. Title 10, U.S. Code, section 12731b(a), states a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he or she has completed at least 15 and less than 20 years of service. 26. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) states eligible Soldiers must request transfer to the Retired Reserve if they 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. DISCUSSION AND CONCLUSIONS: 1. The evidence shows the applicant was found medically unfit for retention in the ARNG. She was honorably discharged from the ARNG on 20 April 2007 with severance pay. 2. There is insufficient evidence to show her unfitting conditions were improperly rated by the formal PEB in 2007. There is no basis for granting the applicant's request to increase her disability rating. 3. The rating action by the VA does not demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. 4. She contends her disability rating should be increased for entitlement to a physical disability retirement. However, she was not injured while serving on active duty so she is not eligible for immediate physical disability retirement, even if her disability rating was 30 percent or higher. 5. She was serving in the Selected Reserve when she was discharged for medical reasons. Since she completed more than 15 years of qualifying service for Non-Regular (Reserve) retirement, she is eligible for a 15-year letter in accordance with Title 10, U.S. Code, section 12731b, and she is eligible for retired pay upon application at age 60. 6. In view of the aforementioned evidence, she should be issued a 15-year letter and she should be transferred to the Retired Reserve effective 21 April 2007. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____X___ ____X___ ____X___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant partial amendment of the ABCMR's decision in Docket Number AR20070008599, dated 27 November 2007. As a result, the Board recommends that all Department of the Army and ARNG records of the individual concerned be corrected by: a. issuing her a 15-year letter notifying her that she is eligible for retired pay upon application at age 60 and b. transferring her to the Retired Reserve effective 21 April 2007. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to increasing her disability rating. ____________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) AR20150005770 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005770 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1