BOARD DATE: 15 November 2016 DOCKET NUMBER: AR20150013388 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: 15 November 2016 DOCKET NUMBER: AR20150013388 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: 15 November 2016 DOCKET NUMBER: AR20150013388 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, an increased disability rating so as to allow him to be medically retired. 2. The applicant states that he was medically discharged and should have been medically retired. He was awarded a 20 percent disability rating at the time of his discharge. This disability rating was immediately increased after his discharge. He was granted a total disability rating as of his discharge date by an appeals court. He was also found to be totally and permanently disabled as of his discharge date by the Social Security Administration (SSA). He believes that his Army disability percentage was incorrect or intentionally lowered to prevent him from being medically retired from active duty. 3. The applicant provides his DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), DA Form 199 (Physical Evaluation Board (PEB) Proceedings), DD Form 214 (Certificate of Release or Discharge from Active Duty), and SSA Notice of Decision. 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. 2. Upon completion of his Regular Army and USAR enlisted service, the applicant enlisted in the Utah Army National Guard (UTARNG) on 9 January 2003 in the rank of specialist/pay grade E-4. He held military occupational specialties 92Y (Unit Supply Specialist) and 91W (Health Care Specialist). 3. As a member of his UTARNG unit, he was ordered to active duty in support of Operation Enduring Freedom (OEF) and entered active duty on 2 January 2004. He served in Afghanistan from 18 April 2004 to 14 March 2005. 4. During his OEF service, his records show: a. A line of duty (LOD) investigation was reviewed for completeness for a bilateral forearm strain incurred on 21 December 2004. b. A DA Form 2173 (Statement of Medical Examination and Duty Status), approved on 6 April 2005, showed he received medical treatment on 21 December 2004 for strain and pain that he noticed after lifting objects in September 2004. The form indicated he was on active duty orders for OEF. c. An LOD investigation showing a review for completeness for his iliotibial band syndrome of the left knee occurred on 16 February 2005. d. A DA Form 2173, dated 15 April 2005, showing he received medical treatment on 16 February 2005 for left knee pain which started in theater on or about 16 February 2005. The form indicated he was on active duty orders for OEF. 5. He provided the following medical evidence: a. A DA Form 3947 showing an MEB convened on 7 April 2006 and considered his medical conditions under the provisions of Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3, of nonradicular low back pain with mild degenerative disc disease of L-2 and L3-4, with right sided facet arthritis; bilateral forearm pain; and left knee pain. The MEB found his asthma, hypertension, dyspepsia, and anxiety (not otherwise specified (NOS)) were medically acceptable conditions for retention. The MEB recommended his referral to a PEB. He indicated on the form that he did not desire to continue on active duty and concurred with the findings and recommendations of the MEB. b. A DA Form 199 showing an informal PEB convened on 5 May 2006 and found him unfit for chronic back pain (due to degenerative disc disease), chronic bilateral forearm pain, and left knee pain with a combined rating of 20 percent. The PEB recommended his disability separation with severance pay. He concurred and waived his right to a formal hearing and the board was approved on 1 June 2006. 6. He was honorably discharged from active duty on 27 July 2006 under the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) for disability, with severance pay, in pay grade E-5. He completed 2 years, 6 months, and 26 days of net active service during this period. 7. He was honorably discharged from the UTARNG on 27 July 2006 under the provisions of National Guard Regulation 600-200 (Personnel – General Enlisted Personnel), paragraph 8-26j(1), for medical unfitness for retention. He completed 12 years, 5 months, and 6 days of total service for retired pay. 8. He provided page 43 of a Board of Veterans? Appeal judgment decision showing: * 50 percent granted for major depression with anxiety * 30 percent for asthma was denied * 10 percent for right upper extremity periostitis was denied * 10 percent for left upper extremity periostitis was denied * 10 percent for left knee strain with iliotibial an syndrome was denied 9. He also provided an SSA Notice of Decision, dated 30 January 2008, wherein he was awarded a 50 percent rating for major depression with anxiety. He was declared permanently disabled. 10. In an advisory opinion, dated 3 June 2016, the Department of the Army, Darnall Army Medical Center, Supervisory Physician, MEB, Integrated Disability Evaluation System Approving Authority, stated that based only upon the documents provided with an Army Review Boards Agency memorandum, dated 19 April 2016, he determined: a. The applicant was separated from the U. S. Army based upon a finding of unfit for nonradicular low back pain with degenerative disc disease at L2 and L3-4, with right sided facet arthritis at L5-S1. He was found by the MEB to fail medical retention standards for bilateral forearm pain, pain is minimal and occasional; and for left knee distal iliotibial band friction syndrome, pain is moderate and occasional. The Soldier agreed with those determinations, and no rebuttal or appeal was noted on the DA Form 3947. The DA Form 199 revealed a finding of unfit for chronic back pain due to degenerative disc disease and facet arthritis without neurologic abnormality, rated at 20 percent disabling; and chronic pain, bilateral forearms and left knee, rated at zero percent disabling. The applicant concurred with those ratings on the DA Form 199, and did not request a formal hearing or present a rebuttal. b. The ratings, based upon observational experience, were not outside of normal. The Soldier received, even with a zero percent rating, service connection for his arm and knee pain. c. Army and Department of Defense (DOD) disability ratings are based upon the percentages in the Veterans Administration Schedule for Rating of Disabilities (VASRD). The ratings received by the applicant were not outside of the appropriate range according to that schedule. Only the percentages from that schedule for conditions that fail to meet Army medical retention standards may be utilized to compute disability percentage for separation categories, and 20 percent would appropriately indicate separation rather than medical retirement. Thirty percent is required for medical retirement. The fact that the SSA found the individual "disabled" is irrelevant to the Army MEB and PEB processes, as the standards defined by statute are completely different. The Army (and DOD) are required to use the percentages specified in the VASRD, and to utilize existing Army (or other service) regulations to determine which conditions (if any) fail medical retention standards. Only those conditions which failed medical retention standards were considered by the PEB for a determination of "fit for duty" or "unfit for duty." Only those conditions for which the Soldier are unfit could be utilized in determining percentage of disability with regard to separation type (separation versus medical retirement). The SSA must utilize entirely different standards established by different sections of the Code of Federal Regulations, or federal law. The standards are entirely different, and the rules for determining disability are entirely different, and cannot be applied to the special circumstance of disability due to military service and service separation categorization. d. VA disability ratings are determined by the Disability Rating Activity Site, and for the Army that location was outside of Seattle. The PEB did not award disability. Only the VA could award disability ratings under the VASRD for compensation and continued treatment eligibility in VA medical treatment facilities. The PEB then utilizes the disability ratings supplied by the VA in order to determine separation categorization. The applicant in question submitted no evidence that supported his opinion that he was inappropriately separated rather than medically retired. All documents show actions that were within the normal range of appropriate findings. There was no evidence presented that the PEB or any other federal agency or activity intentionally lowered or incorrectly lowered his percentage in order to prevent medical retirement. e. The Soldier was appropriately separated rather than medically retired, based upon the 20 percent combined rating for his unfitting conditions. No further action is required, unless evidence has been submitted that supports misapplication of appropriate rating criteria at the time of his medical board process. 7. The advisory opinion was provided to the applicant on 7 June 2016 for acknowledgement/rebuttal. He did not respond. REFERENCES: 1. AR 40-501, chapter 3, in effect at the time, provided for the separation of an individual found to be unfit by reason of physical disability, he/she must be unable to perform the duties of his/her office, grade, rank or rating. Members with conditions listed in this chapter were considered medically unfit for retention on active duty and were referred for disability processing. 2. AR 635-40, in effect at the time, established the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U. S. Code, Chapter 61, and DOD Directive 1332.18 (Separation or Retirement for Physical Disability). It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. a. If a Soldier was found unfit because of physical disability, the regulation provided for disposition of the Soldier according to applicable laws and regulations. b. Soldiers were referred into the PDES system when it was determined that they did not meet physical standards for enlistment, appointment and/or induction in accordance with chapter 2 of AR 40-501, or they no longer met medical retention standards in accordance with chapter 3, AR 40-501. 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. 4. 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. DISCUSSION: 1. The evidence clearly shows that the applicant participated in his Army disability processing, concurred with the findings and recommendation of the MEB, and the informal PEB disability recommendations and ratings regarding his chronic back pain (due to degenerative disc disease) and chronic bilateral forearm and left knee pain and medically acceptable conditions of asthma, hypertension, dyspepsia, and anxiety (NOS). He concurred with the PEB?s findings and waived his right to a formal hearing. The PEB recommended his permanent disability retirement with a combine 20 percent rating. He was separated accordingly on 27 July 2006. 2. He provided no evidence and his military records contain none showing an MEB or PEB error that would necessitate correction of his military records. Absent evidence to the contrary, it is presumed that all requirements of law and regulations were met and his rights were fully protected throughout his 2006 PDES processing. 3. There is also no evidence presented that the PEB or any other federal agency or activity intentionally or incorrectly lowered his percentage in order to prevent medical retirement. A disability rating assigned by the Army is based on the level of disability at the time of Soldier's discharge. Based on his rating of less than 30 percent and his completion of less than 20 years of service he was discharged accordingly. 4. The fact he was determined to be totally and permanently disabled by a VA appeals judge and the SSA is not sufficient evidence to conclude that he should have been medically retired by the Army with entitlement to retired pay and benefits. It appears the SSA considers him disabled, thus allowing him benefits administered by that agency under its specific statutory authorities. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013388 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013388 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2