IN THE CASE OF: BOARD DATE: 20 January 2011 DOCKET NUMBER: AR20100016881 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 due to physical disability. 2. The applicant states he is ineligible for TRICARE benefits because he was medically discharged. He contends his medical discharge and 20 percent disability rating was in error because the Department of Veterans Affairs (VA) determined his initial shoulder injury had also caused injury to his neck. They rated his neck injury at 20 percent. He further contends the combined disability ratings equal 40 percent and show he should have been medically retired. He currently has claims pending for a traumatic brain injury, post-traumatic stress disorder, and sleep apnea. He is unable to work and hopes something can be done to correct the situation. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 31 October 1995; a news article from the Miami Herald newspaper, dated 2 April 2010; and a VA rating decision, dated 16 November 2009. 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 13 October 1987, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty 33R (Electronic Warfare/Intercept Aviation System Repairer). 3. The medical evaluation board (MEB) summary contained in his record reports he underwent a physical examination on 11 January 1995. His chief complaint was first documented in January 1992 when a 600-pound aircraft rack fell, injuring him while he was working on an aircraft. The injury was initially diagnosed as a sprained shoulder and he received physical therapy but still had pain. In December 1993, he was diagnosed at Walter Reed Army Medical Center with multidirectional instability and impingement syndrome. An arthroscopic repair of his medical glenohumeral ligament tear was performed and after immobilization he developed adhesive capsulitis. After going through aggressive rehabilitation, he showed some improvement in his range of motion, but there was still significant pain and limitation of motion. 4. The final diagnosis was adhesive capsulitis "frozen shoulder" and he was referred to an MEB/physical evaluation board (PEB). 5. On 14 March 1995, an MEB convened to assess his medical condition. The applicant did not present any views on his own behalf and indicated he did not desire to continue on active duty. He agreed with the MEB findings and recommendations. The MEB referred him to a PEB for a determination of fitness for duty based on adhesive capsulitis of the right shoulder with limited range of motion. 6. On 10 May 1995, a PEB convened to consider his medical condition. The PEB found him unfit, rated at 20-percent disabling. The PEB recommended separation with severance pay. 7. On 17 May 1995, he concurred with the PEB's determination and waived a formal hearing of his case. 8. On 31 October 1995, he was discharged due to physical disability, with severance pay. He completed 8 years and 18 days of creditable active service. 9. The VA Rating Decision provided by the applicant determined his cervical spine degenerative disc disease was service connected and assigned him a 20-percent disability rating effective 25 November 2008. 10. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30-percent disabling. It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling. 11. Title 38, U.S. Code, sections 310 and 331, 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 physically unfit 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 AND CONCLUSIONS: 1. The applicant contends his military records should be corrected to show he was retired due to physical disability. He argues the VA currently rates his injuries at 40 percent which shows he should have received a medical retirement. 2. The available evidence clearly shows he was medically disabled and evaluated by a PEB. He received a 20-percent disability rating and severance pay for adhesive capsulitis of the right shoulder with limited range of motion. 3. The available evidence shows the VA reevaluated his medical conditions in November 2009 and granted 20-percent disability ratings for cervical spine degenerative disc disease. 4. An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability and/or social functioning. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings or finding other conditions to be service connected. 5. In view of the above, the applicant's request should be denied. 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 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) AR20100016881 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100016881 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1