ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20160013503 APPLICANT REQUESTS: his disability separation be changed to a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge or Dismissal) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant states that he would like his discharge to be changed to a medically retired status due to damage to his knees and his post-traumatic stress disorder (PTSD) diagnosis. 2. A review of the applicant’s service record shows: a. He enlisted into the Regular Army on 13 January 2009. b. He served in Iraq from 1 March 2006 to 30 September 2008 and from 1 July 2007 to 29 February 2008. c. On 3 April 2013, a medical evaluation board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, found he was diagnosed with the conditions listed below and recommended for a referral to a physical evaluation board (PEB). Diagnosis Met Retention Standards Did Not Meet Retention Standards 1. Left knee ACL tear X 2. Right knee medical meniscal tear X 3. Degenerative arthritis of left shoulder joint X 4. Cervical strain X 5. Tension headaches X 6. Alopecia X 7. Unilateral tinnitus left ear X 8. Bruxism X 9. Depression, NOS X 10. Stuttering X 11. Pseudofalliculitis barbae X d. On 19 April 2013, after having been counseled, the applicant indicated he reviewed the contents of the MED, agreed with the findings and recommendations, and authenticated the DA Form 3947 (MEB Proceedings) with his signature. He acknowledged: * he reviewed the contents of the MEB, physical profile, and narrative summary; he understood the PEB would only consider the conditions listed on the DA Form 3947 * the DA Form 3947 included all his conditions and whether or not they meet retention standards, the conditions that did not meet retention standards were properly listed * he provide all medical documents in his possession to be included in the MEB; he agreed that the MEB accurately covered his medical conditions at the time e. On 6 June 2013, an informal PEB convened to determine the applicant’s fitness for retention in the Army. (1) The PEB found him physically unfit for his degenerative arthritis of the left shoulder, cervical strain, left knee injury anterior cruciate ligament (ACL) tear repair, right knee medial meniscal tear, and tension headaches. The PEB recommended a rating of 20% and that his disposition be separation with severance pay. (2) He was counseled, concurred with the PEB findings and recommendations on 17 June 2013, waived his right to a formal hearing, and did not request reconsideration of his Department of Veterans Affairs (VA) ratings. f. The applicant was discharged on 16 September 2013 under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separations) chapter 4 (Procedures), due to disability with entitlement to severance pay. 3. On 17 January 2019, the Army Review Boards Agency senior medical advisor rendered an advisory opinion in the processing of this case. He opined: a. The applicant’s medical conditions were duly considered during the medical separation processing. The applicant did not meet medical retention standards for right a. knee, left knee, left shoulder, cervical strain, and tension headaches in accordance with AR 635-40 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement). b. The applicant met medical retention standards for depression with stuttering and sleep disturbance, bruxism, tinnitus, scar right knee, burn scar right arm, psuedofolliculitis barbae, alopecia, and other physical, medical, dental and/or behavioral conditions. c. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character, reason, rated condition(s), disability determination(s), disability rating(s), and/or combat-relatedness for the discharge in this case. d. After comprehensive review of the medical and other records, the medical advisor concluded there is no cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability rating(s) recommended. e. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation, Congress grants that role and authority to the VA, operating under a different set of laws. 4. On 23 January 2019, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. He did not respond. 5. By regulation, conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the findings of the medical advisory stating it found no evidence of a medical disability or condition that would support a change to the character or reason for discharge, the Board concluded that there was insufficient evidence to warrant changing the reason for separation in the applicant’s discharge. 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. 5/28/2019 X CHAIRPERSON Signed by: 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. REFERENCES: 1. Army Regulation (AR) 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement. Chapter 3 of the regulation gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth the policies for the disposition of Soldiers found unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. a. Paragraph 3-1 (Standards of Unfitness Because of Physical Disability) states the mere presences of an 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 their office, grade, rank, or rating. The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier’s acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. b. Paragraph 3-2 (Presumptions) states 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. c. Paragraph 4-17 (Physical Evaluation Boards (PEBs)) states PEB’s are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probably permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier, against the physical requirements of the Soldier’s particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability. 4. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the 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. These two government agencies operate under different policies. 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.