IN THE CASE OF: BOARD DATE: 23 February 2017 DOCKET NUMBER: AR20150018938 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 IN THE CASE OF: BOARD DATE: 23 February 2017 DOCKET NUMBER: AR20150018938 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. IN THE CASE OF: BOARD DATE: 23 February 2017 DOCKET NUMBER: AR20150018938 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 was awarded a disability rating of at least 30 percent and that he was medically retired. 2. The applicant states the Department of Veterans Affairs (VA) informed him that he should have been medically retired because he was found unfit for duty and involuntarily discharged as a result. He contends his injuries were sustained during physical fitness training and the doctors did not want to perform surgery because the recovery time was over one year. He was forced to separate and put his disabilities in the hands of the VA. 3. The applicant provides no additional 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. On 8 October 2008, having had prior active service, the applicant reenlisted in the Regular Army. He held military occupational specialties (MOS) 88H (Cargo Specialist) and 88K (Watercraft Operator). 3. The complete facts and circumstances of the applicant’s injuries/illnesses are unavailable; however, the record shows on 14 October 2011 an informal Physical Evaluation Board (PEB) convened at Arlington, VA. The PEB found his medical conditions of achilles tendinitis, bursitis and enthesopathy, right foot, to include a right heel spur were non-battle injuries, onset in 10 September 2010 while running during physical training. 4. His medical condition was determined to be unfitting because his profile precluded him from the reasonable performance of his duties as a cargo specialist. The PEB recommended a combined disability rating of 10 percent and separation with severance pay if qualified. 5. On 24 October 2011, he concurred with the findings and recommendations of the PEB and waived a formal hearing of his case. The Secretary of the Army approved the PEB on 4 November 2011. 6. On 23 November 2011, he was honorably discharged by reason of disability with severance pay, non-combat related. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he held the rank of specialist (SPC)/E-4 and he had completed 3 years, 1 month, and 16 days of active military service. It also shows he received $22,308 as severance pay. 7. On 13 December 2016, the Senior Medical Advisor, Army Review Boards Agency, reviewed the applicant’s available service and post-service medical records to determine if his medical conditions warranted separation through medical channels and/or a medical retirement. He opined that the applicant’s medical conditions were duly considered during medical separation processing (Integrated Disability Evaluation System) and there was no evidence of a medical disability or condition which would support a change to the reason for his discharge. 8. On 14 December 2016, the advisory opinion was forwarded to the applicant for comment. No response was received. REFERENCES: 1. 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 rated at least 30 percent. 2. 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 rated at less than 30 percent. Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that those members who do not meet medical retention standards will be referred to a PEB to determine whether they are physically unfit to perform their duties and if found unfit, to determine the percentage of disability to be awarded. This regulation also states that 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. 4. Army Regulation 635-40 further provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual’s performance, and requirements which may be imposed on the Army to maintain and protect him or her during future duty assignments. DISCUSSION: 1. The applicant requests, in effect, correction of his records to show he was awarded a disability rating of at least 30 percent and that he was medically retired. 2. The applicant was evaluated by a PEB which found the injuries he sustained during physical training were unfitting. He was granted a combined disability rating of 10 percent and the PEB recommended separation with severance pay. The applicant concurred with the findings and recommendations on 24 October 2011. 3. The applicant contends that he should have been medically retired. The medical advisor in this case found no evidence of a medical disability or condition which would support a change to the reason for his discharge. 4. It is acknowledged that medical conditions may worsen over time; however, the Army’s rating is dependent on the severity of the unfitting condition at the time of separation. The VA has the responsibility and jurisdiction to recognize any changes in conditions over time by adjusting a disability rating. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018938 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018938 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2