ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 January 2019 DOCKET NUMBER: AR20160013254 APPLICANT REQUESTS: * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired in lieu of receiving a physical disability discharge with severance pay * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with a personal note * two medical record documents * an extract of his Department of Veterans Affairs (VA) disability rating document FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He believes he received an unfair initial evaluation of his injury during the medical evaluation board (MEB) process. The initial examiner said he performed certain tests that he did not receive, he could bend at a higher degree than he could, and felt he was over exaggerating his injury. He feels this was a factor in his rating which did not qualify for a medical retirement. b. The examiner did not take into consideration his surgeon's note of needing another surgery. However, the surgeon determined it would ruin his life and that he should get out. He did not appeal due to a job offer and was informed by his assigned attorney that he could appeal after his discharge. Subsequently, he could not pass a physical examination and was not offered the job. His injury now is rated at 40 percent. 3. The applicant enlisted in the Regular Army on 29 April 2013. 4. The applicant was recommended for and received an informal physical evaluation board (PEB) on 17 April 2015 to consider his suitability for further service. The PEB determined the applicant had the following two conditions that deemed him to be medical unfit for further service: (1) a herniated disc condition and degenerative disc disease with laminectomy syndrome and (2) radiculopathy of left lower extremity due to herniated disc condition and degenerative disc disease with continued residual status post L5-S1 micro-discectomy. 5. These conditions were due to a February 2014 fall, while at basic training, off the back of a 2.5 ton truck and residuals continued post-surgery in August 2014. The board recommended that he be separated with severance pay and a disability rating of 20 percent. 6. The PEB further explained to the applicant that because his disability rating was less than 30 percent and because he had less than 20 years of service, it required separation from the service with disability severance pay per Title 10, U.S. Code, section 1208 (active plus reserve component equivalent service). The applicant concurred with the findings and signed the PEB proceedings on 24 April 2015. 7. The applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability with severance pay, non-combat (enhanced). His DD Form 214 confirms: * he completed 2 years, 2 months, and 24 days of net active service * he received $11,628.00 in disability severance pay in conjunction with his discharge 8. The applicant provides: a. Two medical documents that discuss the applicant's medical condition and his physical limitations. It further notes the applicant's intention to go through the MEB process. b. An extract page from what is presumed to be a VA disability rating determination, wherein, his percentage of disability rating increased from 10 percent to 40 percent for his disc surgery low back pain, effective 10 November 2015. 9. In the processing of this case, an advisory opinion was obtained on 15 August 2018, from the Army Review Boards Agency (ARBA) Senior Medical Advisor. The advisory official opined: * the applicant's medical conditions were duly considered during the medical separation process * a review of the available documents found no evidence of a medical disability or condition that would support a change to the rated condition, disability determination, disability rating, combat-relatedness, character or reason for the discharge in this case * the Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation * that role and authority is granted by Congress to the VA operating under a different set of laws 10. The applicant was provided a copy of this advisory opinion on 17 August 2018, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. 11. Any disability rating action by the VA does not demonstrate an error or injustice on the Army's part. 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. 12. By regulation, an applicant is not entitled to a hearing before the Board. A formal hearing may be authorized by the ABCMR or by the ABCMR Director whenever justice requires. BOARD DISCUSSION: 1. The Board considered the applicant’s request with all supporting documents, evidence in the service record and applicable policies and guidance. The Board’s inclination in this regard is bolstered by the advisory opinion offered by the Army Review Board’s Senior Medical Advisor. In his advisory opinion, he noted a review of the available documents found no evidence of a medical disability or condition that would support a change to the rated condition, disability determination, disability rating, combat-relatedness, character or reason for the discharge in this case. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. Any disability rating action by the VA does not demonstrate an error or injustice on the Army's part. 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. As a result, the Board finds there is insufficient evidence that would warrant a medical retirement. 2. The Board further considered the request for a personal appearance before the Board and found the evidence of record and the independent evidence provided by the applicant to be sufficient to render a fair and equitable decision at this time. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned and for a personal appearance before the Board. 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. 3. 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. 4. 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 Physical Disability Evaluation System (PDES). 5. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 7. Army Regulation 635-40 establishes the Army 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. It provides that an MEB is 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 Army Regulation 40-501. Disability compensation is not an entitlement acquired by reason of 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 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 nonratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable. ABCMR Record of Proceedings (cont) AR20160013254 6 1