BOARD DATE: 1 December 2015 DOCKET NUMBER: AR20150002622 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 DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to increase his percentage of disability to 30 percent (%), thereby affording him retirement by reason of disability. 2. The applicant states: * he was rated by a military disability board and was determined to be 30% disabled due to combat-related injuries * he was forced to take compensation [sic, severance] pay in the amount of $31,098; however, after taxes he only received $22,000 * while clearing post, he was told he qualified for a military retirement due to his 30% combat-related disability * after departing post and attempting to get an identification (ID) card in January 1996, he was informed at Fort Polk, Louisiana that he did not qualify for any military benefits * he was denied re-entry into the Army in 1997 after he was unable to find civilian employment * he was recently informed by the Department of Veterans Affairs (VA) that he was not retired and they would have to recoup the severance pay he received in 1996 * the VA informed him that he was not retired because he was rated by the Army as 0% disabled, as stated on his DD Form 214 (Certificate of Release or Discharge from Active Duty) * he was also told he could not have retired by way of disability if rated as 0% disabled by the Army; however, he has records that show he was rated as 30% disabled by the Army and his DD Form 214 should show he was retired with 30% disability * he thinks he was wrongly guided by the people who cleared him out of the Army, who made a grave mistake by processing his discharge as 0% * he has paid the $31,098 back and would like to receive his military retirement as he feels it should have been back in 1996 3. The applicant provides the following documents arranged chronologically: * Orders B069-23, issued by Headquarters, 25th Infantry Division (Light), 556th Personnel Service Company (Rear), Schofield Barracks, Hawaii on 10 March 1995 * an extract (page 1) of his DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), undated * an extract (page 2) of his DA Form 199, dated 29 September 1995 * Orders B312-12, issued by Headquarters, 25th Infantry Division (Light) on 8 November 1995 * DD Form 214, for the period ending 16 December 1995 * his VA Rating Decision, dated 20 November 1997 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 4 October 1985, held military occupational specialty (MOS) 13B (Cannon Crewmember), and attained the rank/grade of sergeant (SGT)/E-5. 3. He was assigned on or about 11 October 1991 to Battery F, 7th Field Artillery Regiment, Schofield Barracks, Hawaii. 4. He was given a permanent profile on or about 28 March 1995, for chronic retropatellar pain syndrome affecting both of his knees. His DA Form 3349 (Physical Profile) shows he was assigned a permanent "3" in the "L" (Lower Extremities) category of the PULHES Factor. This form was authenticated by the 25th Infantry Division Surgeon's Office. 5. The applicant underwent a review by an MOS/Medical Retention Board on 27 April 1995, which was convened to evaluate his ability to perform the physical requirements of his primary MOS. Based on a thorough review of his most recent permanent physical profile and all other pertinent records, the Commanding General (25th Infantry Division) determined that the limitations imposed by his permanent profile were so restrictive that they precluded his retraining and reclassification into any other MOS. He was directed to appear before an MEB/PEB. 6. His record contains his MEB Proceedings, dated 18 August 1995, which show: a. The MEB considered his conditions of: (1) Chronic patellar tendonitis, incurred while entitled to basic pay and permanently aggravated by service, not existing prior to service. (2) Chronic patellar femoral syndrome, incurred while entitled to basic pay and permanently aggravated by service, not existing prior to service. (3) Degenerative disease of the lumbar disc, incurred while entitled to basic pay and permanently aggravated by service, not existing prior to service. (4) Insomnia, incurred while entitled to basic pay and permanently aggravated by service, not existing prior to service. b. The MEB referred him to a PEB, the MEB's findings and recommendation were approved, and the applicant agreed with the MEB's findings and recommendation. However, he did have the option to disagree with the findings and recommendations and request an appeal if he so desired. 7. An informal PEB was conducted at Fort Lewis, Washington on 21 September 1995. The PEB considered his condition of chronic patellar tendonitis with pain and swelling in the lower part of the knee cap with activity, not revealed by x-rays. The PEB found him physically unfit and recommended the applicant's separation from service with a combined disability rating of 0% and entitlement to severance pay. 8. The applicant initially did not concur with the PEB's findings and recommendation and demanded a formal hearing with personal appearance; however, he subsequently recanted his request on 10 October 1995, waived his appeal, and stated his agreement with the PEB Proceedings. 9. His DD Form 214 shows he was honorably discharged on 16 December 1995, by reason of disability with entitlement to severance pay. Item 18 (Remarks) of his DD Form 214 contains the entries "DISABILITY SEVERANCE PAY -- $31098.00" and "AUTH SEVP IN GR OF SGT/E5 DISABL RATINING OF 0 PER CENTUM," which is interpreted to mean he was authorized severance pay in the grade of SGT/E-5, in the amount of $31,098, due to his disability rating of 0%. 10. His VA Rating Decision of 20 November 1997 shows his numerous medical issues were considered by the VA, including those evaluated by the PEB, and were determined to be 30% disabling and service-connected. 11. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. a. Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability. It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. b. Paragraph 3-5 contains guidance on rating disabilities. 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. Any non-ratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable. 12. Title 38, U.S. Code, sections 1110 (10 USC 1110) and 1131 (10 USC 1131), permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge that disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 13. Title 10, U.S. Code, section 1201 (10 USC 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. 14. Title 10, U.S. Code, section 1203 (10 USC 1203), provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated less than 30 percent. 15. Title 10, U.S. Code, section 1212 (10 USC 1212), sub-paragraph (d) provides that the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the VA. Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered. DISCUSSION AND CONCLUSIONS: 1. The applicant requested his discharge with severance pay be changed to disability retirement. His request was carefully considered; however, there is insufficient evidence to support his request. 2. The evidence of record shows he suffered from a medical condition that rendered him unable to satisfactorily perform the duties of his grade and specialty. He was referred to an MEB because of his inability to physically perform the basic functions of his MOS due to his knee pain. Consequently, his records were evaluated by an MEB that referred him to a PEB. The PEB found him medically unfit, rated his disabling condition at 0%, and recommended his separation by reason of physical disability with entitlement to severance pay. 3. After his separation, the VA rated him for multiple conditions including those evaluated by the PEB. The VA found the conditions to be 30% disabling and service-connected; however, this rating only applied to the VA. 4. The applicant contends his percentage of disability, as determined by the VA, was applicable to his Army separation; thus, he should have been retired by the Army instead of being separated with entitlement to severance pay. 5. An award of a different rating by another agency does not establish error in the rating assigned by the Army PDES. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service; only the Army can make that determination. The VA may award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability. 6. His physical disability evaluation was conducted in accordance with law and regulations and he concurred with the recommendation of the PEB. There does not appear to be an error or an injustice in his case. He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case. 7. He takes issue with the VA's recoupment of his severance pay prior to his receipt of disability compensation. However, 10 USC 1212 (d) provides that the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the VA. Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered. 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 that 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) AR20150000714 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002622 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1