ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:      6 May 2019 

	DOCKET NUMBER:  AR20160018791


APPLICANT REQUESTS:  A medical retirement.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings, dated 3 February 2015
* Two Department of Veterans Affairs (VA) Rating Decisions, dated 16 June 2015 and 12 August 2016

FACTS:

1.  The applicant states:

     a.  He was discharged with a 10 percent (%) medical combat-related disability rating from the Army for only his back.  The VA awarded him ratings of 30% (currently 50%) for both post-traumatic stress disorder (PTSD) and bilateral plantar fasciitis and pes planus and 10% ratings for left shoulder superior labral tear, bilateral ankle Achilles tendonitis, and headaches.  The Army stated that he met medical retention standards for these conditions and only considered his lumbar condition.  

     b.  He is appealing his PEB decision because the board failed to acknowledge all of his medical conditions and/or that the conditions did impact his ability to perform his job as a Soldier in the Army.  As such, he should have been medically retired.

2.  The applicant provides his PEB Proceedings and two VA Ratings Decisions on/for:

* 16 June 2015 – monthly entitlement and 30% rating for PTSD notification
* 12 August 2016 – monthly entitlement and increased 50% rating for PTSD notification




3.  A review of the applicant’s records show:

     a.  He enlisted in the Regular Army (RA) on 8 October 1997.  

     b.  He reenlisted in the RA on 13 December 2000 and 31 May 2004.

     c.  He served in:

* Kuwait from 19 December 1999 to 19 April 2000
* Iraq from 1 April 2003 to 1 June 2004 and from 2 October 2006 to 2 February 2008
* Afghanistan from 9 June 2010 to 6 June 2011

4.  The complete facts and circumstances surrounding his medical separation processing are not available for review.  However, the available military record contains:

     a.  A DA Form 199 showing a board convened on 3 February 2015 and found him physically unfit for a herniated nucleus pulposus and degenerative disk disease.  The board recommended a rating of 10% and his separation with severance pay.  The 
DA Form 199 stated:

* a Medical Evaluation Board (MEB) indicated his other medical conditions, to include PTSD, were not found unfitting and meet retention standards; 
* did not indicate any of these conditions caused profile limitations (functional activities); and did not indicate that performance issues, if any, were due to these conditions
* the case was adjudicated as part of the Integrated Disability Evaluation System (IDES)
* the findings were reconsidered based on a review of the case file, medical record, and the information provided by the applicant
* the applicant concurred with the board, waived his right to a formal hearing, and did not request reconsideration of his VA ratings

     b.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 4 June 2015, under the provisions of Army  Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, for disability (combat zone), with severance pay.  He was credited with completing 17 years, 7 months, and 13 days of service.

5.  An advisory opinion was received from the Senior Medical Advisor/Psychologist, Army Review Boards Agency, on 21 December 2016, in the processing of this case.  The medical advisor reviewed the record for alleged medical condition(s) that may have warranted separation through medical channels or medical conditions(s) not considered during medical separation processing.  The medical advisor reiterated the applicant’s period of military service and stated both the applicant’s PTSD and depressive disorder conditions met retention standards.  His medical conditions were duly considered during medical separation processing (IDES).  A review of the documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case.

6.  The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal on 29 December 2016.  He did not respond.

7.  By regulation, a Soldier may be discharged from the Army for not meeting retention standards in accordance with chapter 3 of AR 40-501 (Standards of Medical Fitness) and awarded a disability rating assigned by the Army’s disability system.  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.  An award of a rating by another agency does not establish error in the rating assigned by the Army's disability system.  .

8.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the medical advisory’s finding that no evidence of a medical disability or condition which would support a change to the character or reason for the discharge, the Board concluded that there was insufficient evidence which would warrant making a change to the narrative reason for separation.  For that reason, the Board recommended denying the applicant’s request for relief.

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.


REFERENCES:

1.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B, establishes the Army Integrated 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 or her 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.  Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits.  The regulation states:

     a.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform.  

     b.  The VA Schedule for Rating Disabilities (VASRD) is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition at the time of separation.  

2.  AR 40-501 (Standards of Medical Fitness), governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0% to 100%, rising in increments of 10%.

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, USC, 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, USC, sections 1110 and 1131, 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.


ABCMR Record of Proceedings (cont)	 AR20160018791


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