ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  24 May 2019

	DOCKET NUMBER:  AR20160017914


APPLICANT REQUESTS:  his discharge with severance pay be changed to a disability 
retirement.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Physical Evaluation Board (PEB) Proceedings
*	Department of Veteran Affairs (VA) Decision

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 page four of his Physical Evaluation Board (PEB) indicates he 
concurred with the board and did not request reconsideration of the rating; however, he 
never initialed this.  His true initials can be seen on the paragraph below stating he 
concurred but requested a reconsideration of his ratings.  He believes his initials were 
forged so that his ratings would not have to be reconsidered.  There is a financial 
difference in being medically retired versus being discharged with severance pay. 

3.  On 28 October 2009, a Medical Evaluation Board found the applicant did not meet 
retention standards for chronic neck pain and referred him to PEB.                              
On 3 November 2009, after being informed of the approved findings and 
recommendation of the board, the applicant agreed with the board’s finding and 
recommendation.

4.  On 19 January 2010, a PEB found the applicant unfit due to cervical degenerative 
disc disease.  PEB referred as chronic neck pain.  The board recommended a 
combined disability rating of 10 percent with severance pay if otherwise qualified.    

5.  On 21 January 2010, the statement concurring with the PEB findings, but requesting 
VA reconsider his disability ratings was lined through.  The statement concurring with 
the PEB findings and waving his rights to a formal hearing of his case was circled and 
initialed.  He did not request reconsideration of his VA ratings.

6.  On 6 February 2010, the applicant was honorably discharged due to disability with 
severance pay, non-combat.  He completed 1 year, 4 months, and 21 days of net active 
service this period.  He had 4 years, 5 months, and 1 day of total prior active service.                                                               

7.  On 19 March 2019, the Army Review Boards Agency (ARBA) medical advisor 
provided an advisory opinion.  The ARBA senior medical advisor concluded VA 
correctly adjudicated the applicant’s one rated unfitting condition, neck pain at 10 
percent. The VA reaffirmed the 10 percent adjudication in 2012. No error found.  Post 
separation, applicant’s low back pain condition progressed but the other conditions 
present at separation remained static (i.e. unchanged) through at least 2012. There was 
no misdiagnosis of a spinal stenosis (congenital narrowing of the spinal canal is not 
stenosis) and there was no effect on the applicant’s VASRD rating(s) for his unfitting 
and/or claimed conditions.  After comprehensive review of the medical and other 
records, 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.  
A copy of the complete medical advisory was provided to the Board for their review and 
consideration.

8.  The applicant was provided a copy of the advisory opinion on 14 November 2017, 
and given an opportunity to submit comments.  He did not respond.

9.  Army Regulation 635-40 (Standards of Medical Fitness) establishes the Army 
Disability Evaluation System 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 office, grade, rank, or rating.  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.

10.  Defense Directive-Type Memorandum (DTM 11-015, 19 December 2011, provides 
for the IDES.  The IDES is the joint Department of Defense (DOD) - VA process by 
which DOD determines whether wounded, ill, or injured Service members are fit for 
continued military service and by which DOD and VA determine appropriate benefits for 
Service members who are separated or retired for a service-connected disability.






BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, his statement, supporting 
medical proceedings, evidence in the record and the advisory opinion.  The Board 
discussed the condition determined to be unfitting and the outcome of the PEB process, 
as well as, the conclusions of the advising official and the VA reaffirmation of his 10 
percent adjudication in 2012.  After their review, the Board determined that the evidence 
was insufficient to change his disability separation.

2.  After reviewing the application and all supporting documents, the Board found the 
relief was not warranted.
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.
  


	  
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):

Not Applicable

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.  Army Regulation 635-40 (Standards of Medical Fitness) establishes the Army 
Disability Evaluation System 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 office, grade, rank, or rating.  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.

     a.  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 military service.

     b.  An enlisted Soldier may not be referred for, or continue, physical disability 
processing action when action has been started under any regulatory provision which 
authorizes a character of service of under other than honorable conditions.  If the case 
comes within these limitations, the commander exercising general court-martial 
jurisdiction over the Soldier may abate the administrative separation.  This authority 
may not be delegated.  A case file may be so referred if the general court-martial 
convening authority finds the following:

*	the disability is the cause, or a substantial contributing cause, of the misconduct 
that might result in a discharge under other than honorable conditions
*	other circumstances warrant disability processing instead of alternate 
administrative separation

3.  DTM 11-015, 19 December 2011, provides for the Integrated Disability Evaluation 
System (IDES).  The IDES is the joint Department of Defense (DOD) - VA process by 
which DOD determines whether wounded, ill, or injured Service members are fit for 
continued military service and by which DOD and VA determine appropriate benefits for 
Service members who are separated or retired for a service-connected disability.

4.  Title 38, U.S. Code, sections 1110 and 1131, permit 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.

5.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) 
prescribes the policies and procedures for correction of military records by the 
Secretary of the Army acting through the ABCMR.  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.


ABCMR Record of Proceedings (cont)	 AR20160017914
	
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