ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  11 October 2019

	DOCKET NUMBER:  AR20170006217


APPLICANT REQUESTS:  that his disability separation 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)
* Consent to release information
* Decision to proceed with case before the Army Board for Correction of Military Records (ABCMR)
* Applicant’s statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) rating 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 he should be eligible for a medical retirement.  At the time of his separation, he was told he could change his military occupational specialty or separate with severance pay due to his inability to perform his job (Infantry Sniper).  He believes the type, severity, and cause of his injuries justifies a medical retirement. 

3.  The applicant provides:

     a.  A VA Form 3288 (Request for and Consent to Release of Information from Individual’s Records), dated 22 May 2017, authorizing the VA to release his medical records to the Army Review Boards Agency.

     b.  A memorandum, dated 5 July 2017 reflecting the applicant’s election to proceed with his case before the ABCMR rather than the Physical Disability Board of Review.

     c.  A Letter, dated 6 December 2016 requesting the Board to review his files and grant him a medical retirement.

     d.  A notarized copy of his DD Form 214, dated 17 April 2008.  

     e.  A letter from the VA, dated 6 December 2016, summarizing the benefits the applicant receives from the VA.  His combined service-connected evaluation is ninety percent.  The individual breakdown of applicant’s service-connected disabilities is as follows:

* surgical scars of the right knee, rating 0%, effective date 05/02/2008
* adjustment disorder with Post Traumatic Stress Disorder (PTSD), rating 70%, related to PTSD-Combat, effective date 08/12/2013
* tinnitus, rating 10%, effective date 05/02/2008
* temporomandibular joint dysfunction syndrome, rating 20%, effective date 05/02/2008
* scar of the left arm, rating 0%, effective date 05/02/2008
* flexion deformity right little finger with scar, rating 0%, effective date 05/02/2008
* obstructive sleep apnea, rating 50%, effective date 08/12/2013
* status post right knee anterior cruciate ligament (ACL) repair, rating 10%, effective date 05/02/2008
* gastroesophageal reflux disease, rating 10%, effective date 08/12/2013  

4.  A review of the applicant’s service record shows:

     a.  He enlisted in the Regular Army on 31 July 2002 for a period of four years.  He reenlisted on 7 June 2006 for a four year period.  

     b.  On 5 February 2008, a Medical Evaluation Board (MEB), referred applicant to a Physical Evaluation Board (PEB) based on applicant having been diagnosed with a medically unacceptable “right knee deficient ACL with chronic pain.”  All other diagnosed conditions were considered medically acceptable.  On 7 February 2008, applicant agreed with the MEB’s findings and recommendation.

     c.  On 20 February 2008, a Physical Evaluation Board (PEB) convened and recommended disability separation with a ten percent rating due to applicant’s right knee condition.  It also concluded all other conditions met retention standards.  On 28 February 2008, applicant concurred with the PEB’s findings and recommendations and on 10 March 2008 the findings and recommendations were approved. 

     d.  On 1 May 2008, the applicant was honorably discharged by reason of disability.  His DD Form 214 shows he served a total of 5 years, 9 months and 1 day of active service and received disability severance pay upon his discharge.
5.  On 10 October 2017, the ARBA medical advisor provided an advisory opinion in this case.  After a thorough review of all available records he opined:

     a.  The available record does not support the existence of PTSD or another behavioral health condition at the time of applicant’s military service.

     b.  The applicant did not meet medical retention standards for right knee problems.  

     c.  He met medical retention standards for all other diagnoses.

     d.  His medical conditions were duly considered during medical separation processing.

     e.  There was no evidence of a medical condition or disability that would support a change to the disability determination or disability rating in this case.   
      
6.  The applicant was provided a copy of the advisory opinion and did not respond.      

7.  By law and regulation disability compensation, in the form of retirement or severance pay, 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.  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 because of his or her office, grade, rank, or rating. 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.


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined relief was not warranted.  Based upon the medical advisory finding that there was no evidence of a medical condition or disability that would support a change to the applicant’s disability determination or rating and the applicant failing to provide any rebuttal to those findings, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s military service record.


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.  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, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination.

	b.  The disability evaluation assessment process involves two distinct stages: the MEB and PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees.

	c.  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 because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

3.  Army Regulation (AR) 635-40 (Personnel Separations—Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, prescribes Army policy and responsibilities for the disability evaluation and disposition of Soldiers who may be unfit to perform their military duties due to physical disability.  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.  Paragraph 3-2 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service.

	b.  Paragraph 3-4 states 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:

		(1)  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

		(2)  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

4.  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.

5.  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.  
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170006217


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