BOARD DATE: 22 December 2016 DOCKET NUMBER: AR20150014175 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: 22 December 2016 DOCKET NUMBER: AR20150014175 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: 22 December 2016 DOCKET NUMBER: AR20150014175 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. 2. The applicant states he was told he qualified for retirement. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * letter from the Department of Veterans Affairs (VA), dated 20 August 2015 * letter to the President of the United States, dated 19 December 2015 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. Having prior service in the Army National Guard, the applicant enlisted in the Regular Army on 30 October 2002. He was promoted to sergeant effective 1 October 2004. 3. His medical evaluation board (MEB) proceedings are not available for review. 4. On 13 March 2009, a physical evaluation board (PEB) found him physically unfit due to degenerative disc syndrome. The PEB recommended a 10-percent disability rating and separation with severance pay. On 18 March 2009, he concurred with the PEB recommendation and waived a formal hearing. 5. On 20 March 2009, the U.S. Army Physical Disability Agency approved the PEB findings. 6. On 11 June 2009, he was honorably discharged by reason of disability with severance pay, non-combat related. 7. He provided a letter from the VA, dated 20 August 2015, showing his combined service-connected evaluation is 90 percent for the following conditions: * bilateral pes planus (also claimed as flat feet) – 10 percent * left elbow strain (claimed as elbow arthritis) – 10 percent * right elbow strain (claimed as elbow arthritis) – 20 percent * lumbar spine strain (claimed as lumbago) – 10 percent * radiculopathy, left lower extremity – 0 percent * radiculopathy, right lower extremity – 0 percent * diabetes – 20 percent * anxiety disorder, not otherwise specified, with insomnia – 70 percent * pseudofolliculitis barbae (commonly known as razor bumps) – 30 percent 8. An advisory opinion was rendered by the Senior MEB Physician, MEB Section, U.S. Army Medical Department Activity, Fort Benning, GA, dated 23 June 2016, wherein he stated: a. The applicant's DA Form 199 (PEB Proceedings) shows he is unfit for duty based on his lumbar degenerative disc disease with back pain with a 10-percent disability rating. b. There are no other conditions listed on his DA Form 199 which fail retention standards. Although his VA examination notes additional conditions for which he is rated, there is nothing to indicate these conditions were documented to cause him to fail retention standards at the time and therefore would not be considered unfitting. c. Based on the information provided, the only conclusion would be that the applicant's disposition met the requirements for separation with severance pay. 9. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. 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. 2. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay. 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, U.S. Code, sections 310 and 331, permit 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. DISCUSSION: 1. The applicant requests correction of his military records to show he was medically retired because he was told he qualified for retirement. 2. The evidence shows: a. In March 2009, a PEB found him physically unfit due to degenerative disc syndrome. The PEB recommended a 10-percent disability rating and separation with severance pay. He concurred with the PEB findings on 18 March 2009. b. He was honorably discharged on 11 June 2009 by reason of disability with severance pay, non-combat related (10 percent). 3. There is no evidence and he provided no evidence showing he was diagnosed with other unfitting conditions for military service prior to his discharge. 4. The medical advisory official noted there are no conditions other than degenerative disc syndrome listed on the applicant's DA Form 199 which fail retention standards. Although his VA examination notes additional conditions for which he is rated, there is nothing to indicate these conditions were documented to cause him to fail retention standards at the time and would therefore not be considered unfitting. 5. He was granted a 90-percent disability rating by the VA in 2015. The rating action by the VA does not demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014175 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014175 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2