BOARD DATE: 20 July 2017 DOCKET NUMBER: AR20150017949 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: 20 July 2017 DOCKET NUMBER: AR20150017949 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: 20 July 2017 DOCKET NUMBER: AR20150017949 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 records to show he retired by reason of physical disability in lieu of separation with severance pay. 2. The applicant states he was medically discharged for his left ankle condition. He has had numerous surgeries on the same ankle since being discharged and now his ankle is fused. He has had nothing but problems with his ankle. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * 527 pages of Department of Veterans Affairs (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 on 7 April 2005 for a period of 3 years and 23 weeks. He served in Iraq from: * 12 August 2006 to 31 October 2007 * 28 September 2008 to 3 September 2009 3. His medical evaluation board proceedings are not available for review. 4. On 20 September 2011, an informal physical evaluation board (PEB) found him unfit due to left ankle limited range of motion. The PEB recommended a disability rating of 20 percent and his separation with severance pay. On 28 September 2011, he concurred with the PEB findings. 5. On 18 October 2011, the U.S. Army Physical Disability Agency approved the PEB findings. 6. On 28 October 2011, he was honorably discharged by reason of disability with severance pay, combat related, with a disability rating of 20 percent. 7. He provided VA medical records showing the following surgeries have been performed on his left ankle since his discharge: * left ankle arthroscopy * left talus screw removal * arthroscopic tibiotalar fusion with tibial bone grafting 8. The VA medical records also show he was granted service-connected disability compensation for the following conditions and disability ratings with an overall or combined disability rating of 90 percent: * post-traumatic stress disorder – 70 percent * sleep apnea – 50 percent * loss of motion of ankle – 30 percent * bursitis – 10 percent * tinnitus – 10 percent * chronic laryngitis – 0 percent * scars – 0 percent 9. An advisory opinion was rendered by the Army Review Boards Agency Senior Medical Advisor, dated 16 May 2017, wherein he stated: a. The applicant did not meet medical retention standards for left talus osteonecrosis (ankle bone necrosis) and left ankle instability in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. b. He met medical retention standards for anxiety (not otherwise specified) (also dysthymic disorder, insomnia and other behavioral health conditions), sleep disturbance with obstructive sleep apnea with a trial of continuous partial airway pressure, hypercholesterolemia (high cholesterol), history of low back strain/pain, history of right shoulder pain, history of human papillomavirus (sexually transmitted) infection, tinnitus, visual acuity (existed prior to service), and other mental, physical, and medical conditions in accordance with Army Regulation 40-501, chapter 3. c. His medical conditions were duly considered during medical separation processing. d. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. e. The medical advisor concurred that the applicant has continued problems affecting his left ankle post-discharge being medically and surgically addressed by the VA. 10. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 2. 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. 3. 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. 4. 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. 5. 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. DISCUSSION: 1. The applicant contends his records should be corrected to show he retired by reason of physical disability in lieu of separation with severance pay. 2. The evidence shows the PEB found him physically unfit due to left ankle limited range of motion with a disability rating of 20 percent. He concurred with the PEB findings on 28 September 2011 and he was discharged by reason of disability with severance pay on 28 October 2011. 3. There is no evidence showing the unfitting condition of left ankle limited range of motion was improperly rated by the PEB in 2011. 4. The VA documentation showing he was assigned a 90-percent disability rating for numerous service-connected disabilities was noted. However, 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 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. 5. The medical advisory official determined the applicant's medical conditions were duly considered during medical separation processing. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017949 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017949 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2