BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20160003342 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: 14 September 2017 DOCKET NUMBER: AR20160003342 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: 14 September 2017 DOCKET NUMBER: AR20160003342 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 retired by reason of physical disability, instead of showing he was discharged by reason of disability with entitlement to severance pay (non-combat related). 2. The applicant states, in effect, he would like his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 September 1991 to show he was honorably retired by reason of permanent physical disability. a. He was medically separated from service with severance pay for 20 percent (%) and not his combined military disability rating of 60%. He had 3 disabilities of 20% that should have totaled 60%. b. Department of Defense (DoD) disability for medical retirements said if the service member is given a total combined military disability rating of 30% or higher, he is medically retired from the military. When a service member is medically retired, he receives all the benefits of a service member who retired regularly from the military. This includes complete medical care and a monthly disability/retirement payment for the rest of his life. c. When his paperwork was done, 20% was seen, and all three of his ratings were not combined. He was just put out on the wrong DoD disability. The ratings are based on the laws of the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD), which determine whether the service member will be medically separated or medically retired, and the exact type and quantity of DoD disability the service member will receive. He would like his benefits that DoD said he would receive for his 30% or higher total combined military disability rating. 3. The applicant provides copies of his DD Form 214 for the period ending 17 September 1991 and internet printouts detailing his VA disability rating, titled "Veterans Information Solutions" and "DoD Disability," each printed on 26 January 2016. 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. Following prior service in the Mississippi Army National Guard, the applicant enlisted in the Regular Army on 17 September 1983. He attended advanced individual training and was awarded military occupational specialty 63D (Track Vehicle Mechanic). 3. A DA Form 3349 (Physical Profile) dated 9 January 1991 shows the applicant received a permanent profile for his upper extremities: his right shoulder. His limitations included no overhead work; no pull-ups; no push-ups; and no handling heavy equipment, including weapons. 4. An MOS/Medical Retention Board (MMRB) convened at Fort Polk, LA, on 14 May 1991, to consider the applicant's qualification for further service. The MMRB found his medical condition precluded him from performing his MOS duties world-wide and in a field environment. The MMRB recommended his concern be sent to a Medical Evaluation Board (MEB). The MMRB proceedings were approved on 17 June 1991. 5. A DA Form 3947 (MEB Proceedings), dated 15 July 1991, shows the MEB evaluated the applicant based upon one diagnosis: chronic impingement syndrome right shoulder status post right Neer acromioplasty and Weaver-Dunn procedure. The MEB recommended he be referred to the Physical Evaluation Board (PEB). He agreed with the MEB's decision on 17 July 1991. 6. A DA Form 199 (PEB Proceedings) shows a PEB convened on 12 August 1991, at Fort Sam Houston, TX. The PEB found the applicant physically unfit for military service. The PEB recommended a combined rating of 10%, with separation from service with severance pay if otherwise qualified. He was informed his disability rating was less than 30%, and Soldiers with a disability rating of less than 30%, who have completed less than 20 years of service as computed under Title 10, U.S. Code, section 1208, are separated from service with entitlement to disability severance pay. a. The applicant's DA Form 199 shows the PEB adjudicated one condition and determined it as unfitting: chronic impingement syndrome, right shoulder, status post right NEER acromioplasty and Weaver-Dunn procedure manifested by pain since 1985. b. The applicant's DA Form 199 shows he was notified of his service-connected medical condition on 20 August 1991; he was counseled that he should contact a VA counselor to learn about available benefits. He was informed none of the benefits are automatic, but that he must apply with the VA. The applicant concurred with the PEB findings and waived a formal hearing. 7. The applicant's DD Form 214 confirms he was honorably discharged on 17 September 1991, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(3), by reason of disability, with entitlement to severance pay. His DD Form 214 further shows he received $24,705.00 in severance pay. 8. The applicant's record does not show any additional physical limitations the PEB could have considered. 9. The applicant provides an internet printout that details his VA Rating Decision, which shows three separate 20% service-connected ratings (specific diagnoses not listed) effective 18 September 1991, with a combined rating of 50%. 10. In the processing of this case, an advisory opinion was obtained on 28 April 2017 from the Army Review Boards Agency (ARBA) Senior Medical Advisor. The advisory official noted and opined: a. The VA printout provided by the applicant notes the following diagnostic code and current percent disability beginning 18 September 1991 for all three: * 5237 – 20% (lumbosacral or cervical strain – with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months) * 5201 – 20% (right; arm, limitation of motion at shoulder level) * 8510 – 20% (right; paralysis, incomplete, mild – upper radicular group) b. Limited review of his VA records through the Joint Legacy Viewer (JLV) shows 18 VA-entered problems listed including headache, radiculopathy cervical region, spondylosis cervical, degenerative joint disease shoulder, right shoulder pain, hearing loss, tinnitus, esophageal reflux, hypertension, hyperlipidemia, obesity, type 2 diabetes and others. His current VA service-connected rating is 60% overall. c. The applicant did not meet medical retention standards for chronic impingement syndrome right shoulder status post right Neer acromioplasty and Weaver-Dunn procedure. He met medical retention standards for other physical, medical, and/or behavioral conditions. d. His medical conditions were duly considered during medical separation processing. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the discharge in this case. 11. The applicant was provided a copy of this advisory opinion on 1 May 2017, to provide him an opportunity to comment and/or submit a rebuttal. 12. The applicant responded to the advisory opinion on 9 May 2017. In his response, he provided information related to how the DoD and VA processes military disability benefits. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation, including retirement. 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 individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 2. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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. The version in effect at the time, provided for medical review board's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. 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. 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. 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. 4. Title 38, United States Code, permits 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. 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: 1. The applicant requests a disability retirement instead of the disability discharge with severance pay he received. He contends his 10% rating should have been 60% so he could have been retired. 2. The evidence of record shows the applicant, during his period of active duty service, was suffering from a physical condition that failed retention standards. His PEB Proceedings show his shoulder limitation was the only condition that failed retention standards. There were no other conditions identified in his military records that failed retention standards or were found unfitting. 3. The one condition considered by the PEB and determined to be unfitting was rated at 10%. Title 10, U.S. Code, section 1201, provides that physical disability retirement for service members requires a disability rating of at least 30%. The PEB recommended him for separation with an entitlement to severance pay. He did not appeal the PEB recommendation or request a hearing. 4. At the time, the Army and VA disability evaluation systems were independent of one another. A diagnosis of a medical condition and/or a subsequent award of a rating by another agency did not establish an error by the Army. Operating under different laws and policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. The VA may award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability. The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating. 5. The applicant’s separation action with severance pay was accomplished in compliance with laws and regulations. There is no evidence of error or injustice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003342 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2