IN THE CASE OF: BOARD DATE: 4 February 2016 DOCKET NUMBER: AR20150006065 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 an increase in his disability rating and medical retirement. 2. The applicant states: a. When he was medically separated, the Army gave him a 20 percent rating (as high as they could go without medical retirement), and separated him without a medical examination, or even allowing him to see someone from the Department of Veterans Affairs (VA). b. The injury to his left hand is so debilitating that the VA immediately provided him at 30 percent disability rating. The Army should have granted him a higher disability percentage similar to the VA prior to his separation. c. The Army did not even consider all his medical conditions, such as a skin condition from the Gulf War or his mental health condition. He was diagnosed with post-traumatic stress disorder (PTSD) based on his service in the Gulf War and is currently rated 50 percent. d. He believes that any one of the above conditions alone should have at least provided him with a 30 percent disability rating from the Army with medical retirement instead of separation with severance pay. 3. The applicant did not provide any supporting 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. The applicant enlisted in the Regular Army (RA) on 5 July 1988. He held military occupational specialty (MOS) 11C (Indirect Fire Infantryman). 3. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 25 September 1991, shows the applicant was seen at Darnall Army Community Hospital, Fort Hood, Texas, on 6 September 1991. He had injured his left hand. The injury occurred while training at Fort Hood, Texas. His tracked vehicle hatch fell on his left hand, causing numerous injuries. The injury was considered in the line of duty. 4. A medical evaluation board (MEB) convened on 4 December 1991. The DA Form 3947 (MEB Proceedings) shows the applicant did not present any evidence or rebuttal statement in his own behalf. a. Item 13 (Diagnosis): (1) Multiple open fractures, left hand. (2) Healed fracture of the third metacarpal, left hand. (3) Healed fracture of the proximal phalanx of the left middle finger. (4) Post-traumatic arthrodesis of proximal interphalangeal joint, left middle finger. (5) The approximate date of the origin of each condition is listed as September 1991 and each was incurred while the applicant was entitled to base pay and did not exist prior to service. b. The board recommended referral to a physical evaluation board (PEB) because he was unfit for continued retention on active duty. c. Item 15 shows the applicant did not desire to continue on active duty. d. The applicant agreed with the board's findings and recommendation. 5. A PEB was convened on 15 January 1992. The DA Form 199 (PEB Proceedings) shows the applicant was found unfit for continued military service by reason of: a. Post-traumatic arthrodesis of the interphalangeal joint and arthrofibrosis restricted motion of the distal interphalangeal joint, left middle finger. (Rated as unfavorable non-dominate hand). b. Osteomyelitis middle phalanx of the left ring finger with decreased motion of the proximal interphalangeal and distal interphalangeal joint. c. The remaining diagnoses from the MEB were not unfitting and not rated. 6. The PEB recommended a combined disability rating of 20 percent with separation and entitlement to severance pay. The applicant did not concur, but waived a formal hearing, and indicated a written appeal was not attached. 7. On 2 April 1992 he was honorably discharged for physical disability with severance pay as a specialist/E-4. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had completed a total of 3 years, 8 months, and 28 days of active duty service. 8. Title 10, U.S. Code (USC), 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, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. 9. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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. 10. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, a PEB rates all disabilities using the VA Schedule for Rating Disabilities. Ratings can range from 0 to 100 percent, rising in increments of 10 percent. 11. Title 38, USC, sections 1110 and 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 which 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. As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that when he was medically separated, the Army gave him a 20 percent rating (as high as they could go without medical retirement), and separated him without a medical examination, or even allowing him to see someone from the VA. 2. At that time the Army and the 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 does not establish an error by the Army. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical fitness standards for military service. The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability and/or social adjustment post service. The VA has the responsibility and jurisdiction to recognize any changes in a medical condition over time by adjusting a disability rating. 3. Clearly, the evidence of record shows the applicant had multiple medical examinations by military medical personnel prior to his MEB. However, at the time there was no requirement to refer him to the VA for an examination or rating. 4. There is no available evidence showing the applicant suffered from any other medical conditions not included in his MEB. 5. The applicant's physical disability evaluation was conducted in accordance with law and regulations. The evidence shows the applicant indicated he did not concur with the PEB proceedings, but waived a formal hearing, and he did not attach a written appeal. 6. 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 the processing of his MEB and the PEB. In view of the facts in this case, there is insufficient evidence to grant him the requested relief. 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) AR20120003593 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006065 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1