ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 April 2019 DOCKET NUMBER: AR20170007203 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) * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Disability Evaluation System (DES) Proposed Rating letter * VA Progress Notes (one page) * six letters from the VA pertaining to his service-connected disability payments FACTS: 1. The applicant states he is seeking the change from a medical discharge to a medical retirement due to being 100 percent disabled as well as unemployable. Due to his injuries and being only 28 years old, he is unable to work. As a result, he will not be given the chance to advance to better his financial situation in order to better provide for his son and wife. 2. The applicant enlisted in the Regular Army on 2 February 2011. He held military occupation specialty (MOS) 11B (Infantryman). He served in Afghanistan from 15 November 2012 to 10 June 2013. 3. A VA DES Proposed Rating, dated 12 March 2015, shows the VA proposed a 20 percent service-connected disability rating for L5-L6 grade I spondylolisthesis with intervertebral disc syndrome and degenerative arthritis of the lumbar spine (claimed as low back pain and bilateral hip pain). 4. On 16 March 2015, an informal PEB convened to adjudicate the applicant's case as part of the Integrated DES (IDES). The PEB found the applicant physically unfit due to degenerative arthritis of the lumbar spine without unfitting radiculopathy, rated 1. 20 percent disabling. The PEB also concluded the following medical conditions were not unfitting because the Medical Evaluation Board (MEB) indicated these conditions met retention standards: * sensorineural hearing loss, right/significant changes in hearing thresholds in service/tinnitus; * dermatitis/pseudofolliculitis * erectile dysfunction * pes planus, bilateral * knee tendonitis, bilateral * left trapezius muscle strain * secondary headache to insomnia * post-traumatic stress disorder (PTSD) 5. The PEB recommended a 20 percent disability rating and the applicant's separation with entitlement to severance pay. The applicant concurred with the PEB findings and recommendations and waived a formal hearing of his case. He did not request reconsideration of his VA ratings. 6. The applicant was discharged on 25 May 2015 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability, severance pay, combat zone (enhanced). 7. The applicant provided letters from the VA pertaining to his service-connected disability payments indicating he was granted service-connected disability compensation for a number of medical conditions with a combined rating of 90 percent. 8. On 5 September 2017, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion. The ARBA senior medical advisory determined that the available documentation found no evidence of a medical disability or condition which would support a change to the disability determination or disability rating for the discharge in this case. A copy of the complete medical advisory was provided to the Board for their review and consideration. 9. The applicant was provided a copy of the advisory opinion on 11 September 2017 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the finding of the medical advisory, which was not rebutted by the applicant, the Board concluded there was insufficient evidence to change the reason for separation to disability retirement. 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. 5/10/2019 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 635-40 establishes the Army DES 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. It states, in part: a. 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. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. b. The PEB-appointed counsel advises the Soldier of the PEB findings and recommendations and ensures the Soldier knows and understands their rights. The Soldier records his or her election to the PEB on the DA Form 199 and has 10 calendar days from the date of receiving the PEB determination to make the election, submit a rebuttal, or he may request an extension. 2. Directive-Type Memorandum (DTM) 11-015 explains the IDES. It states: a. 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. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures requirements promulgated in DODI 1332.18 and the Under Secretary of Defense for Personnel and Readiness memoranda. All newly initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the service member due to special circumstances. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA Compensation and Pension standards. Collectively, the examinations will be sufficient to assess the member’s a. referred and claimed condition(s) and assist VA in ratings determinations and assist military departments with unfit determinations. d. Upon separation from military service for medical disability and consistent with BCMR procedures of the Military Department concerned, the former service member may request correction of his/her military records through his/her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If VA changes the disability rating for the unfitting condition based on a portion of his/her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the service member may request correction of his/her military records through his/her respective Military Department BCMR. e. If, after separation from service and attaining veteran status, the former service member desires to appeal a determination from the rating decision, the veteran has one year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction. 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, 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. 4. Title 38, U.S. Code, sections 1110 and 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 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 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. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his or her duties. 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.