BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150016226 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: 6 April 2017 DOCKET NUMBER: AR20150016226 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: 6 April 2017 DOCKET NUMBER: AR20150016226 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 records to show he was retired by reason of physical disability, instead of showing he was discharged by reason of disability with entitlement to severance pay (non-combat related). 2. The applicant states his discharge should be changed to retirement in accordance with the Congressionally-mandated review (review 10-20 percent); his Department of Veterans' Affairs (VA) rating was 30 percent or more. He believes his Army disability rating should have been 30 percent and he should have been medically retired. 3. The applicant provides his VA Rating Decision, dated 6 June 2013. 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 Washington Army National Guard (WAARNG) on 29 June 2010. He entered active duty on 25 October 2010, for the purpose of completing his initial entry training (IET). His record indicates he did not finish IET. 3. A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 8 September 2011, shows the applicant was found physically unfit for military service. The PEB recommended a combined rating of 20 percent, with separation from service with severance pay if otherwise qualified. He was informed his disability rating was less than 30 percent, and Soldiers with a disability rating of less than 30 percent, who have completed less than 20 years of service as computed under Title 10, U.S. Code, section 1208, are separated from service with entitlement to disability severance pay. 4. The applicant's DA Form 199 shows the PEB adjudicated one condition and determined it as unfitting: arm, limitation of motion, listed as left acromioclavicular (AC) grade II separation with post-operative reconstruction and left shoulder painful surgical incision. 5. The applicant's DA Form 199 shows he was notified of his service-connected medical condition; he was counseled that he should contact a VA counselor to learn about available benefits. He was informed none of the benefits are automatic, but that he must apply with the VA. The applicant concurred with the PEB findings and waived a formal hearing. 6. The applicant's record does not show any additional physical limitations the PEB could have considered. 7. The applicant was released from active duty for training, and was discharged from the Reserve of the Army on 12 October 2011. He was returned to the control of the WAARNG for further separation processing. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was separated under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability, with entitlement to severance pay. His DD Form 214 further shows he received $9,869.40 in severance pay. 8. The applicant was discharged from the WAARNG on 12 October 2011. His National Guard Bureau (NGB) Form 22 (National Guard Bureau Report of Separation and Record of Service) shows he was issued an uncharacterized character of service. 9. The applicant provides his VA Rating Decision, which shows: * a rating of 30 percent for depression with anxiety symptoms (also claimed as insomnia, major depression, and sleep disturbances) * a rating of 20 percent for his left shoulder AC joint reconstruction surgery and wound debridement surgery secondary to joint infection (claimed as left shoulder joint stiffness and pain (minor)) * a rating of 10 percent for patellofemoral syndrome, left knee * combined rating of 50 percent 10. The applicant's available records do not show he was treated for depression with anxiety symptoms, insomnia, sleep disturbances, or patellofemoral syndrome during his period of military service. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation, including retirement. Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 2. Army Regulation 635-40 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. The version in effect at the time, provided for medical review board's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 3-1 provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. 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. 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, United States Code, 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 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. 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: 1. The applicant requests a disability retirement instead of the disability discharge with severance pay he received. He contends his 20 percent rating should have been 30 percent so he could have been retired. 2. The evidence of record shows the applicant, during his period of active duty service, was suffering from a physical condition that failed retention standards. His PEB Proceedings show his arm/shoulder limitation was the only condition that failed retention standards. There were no other conditions identified in his military records that failed retention standards or were found unfitting. 3. The one condition considered by the PEB, which was determined to be unfitting, was rated at 20 percent. Title 10, U.S. Code, section 1201, provides that physical disability retirement for service members requires a disability rating of at least 30 percent. The PEB recommended him for separation with an entitlement to severance pay. He did not appeal the PEB recommendation or request a hearing. 4. At the time, 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 did not establish error by the Army. Operating under different laws and policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. The VA may award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability. The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating. 5. The applicant’s separation action with severance pay was accomplished in compliance with laws and regulations and there is no evidence of error or injustice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016226 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2