IN THE CASE OF: BOARD DATE: 10 July 2020 DOCKET NUMBER: AR20180002857 APPLICANT REQUESTS: physical 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) * Department of Veterans Affairs (VA) letter, dated 22 January 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR 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: a. He was discharged from the Army and not given the option for a military retirement. He was notified of this error in the last year and has spoken with multiple organizations, which has led him to file this application. He believes it is an injustice that he was not offered the military retirement, even though he qualified for it. b. Due to the VA rating of 60 percent shortly after being discharged from the Army and the fact that the Physical Evaluation Board (PEB) only granted him a rating of 20 percent, he feels he was unjustly medically discharged and not offered the military retirement he justly earned. He was honorably medically separated and should have been offered the full military retirement with benefits. The separation office did not notify him of the option of a military retirement. 3. After 1 1/2 years of prior enlisted service, the applicant was appointed a Warrant Officer One in the U.S. Army Reserve on 1 November 1996. 4. A Standard Form 88 (Report of Medical Examination), dated 8 February 2000, shows: a. The applicant underwent medical examination on the date of the form for the purpose of a Medical Evaluation Board (MEB). b. The noted abnormalities were a history of left ankle reconstruction (lateral collateral ligament) as an adolescent and severe lower back pain (LBP)/radiculopathy. c. The applicant was given a permanent physical profile rating of “3” for physical capacity or stamina and was found qualified for separation. 5. A Standard Form 93 (Report of Medical History), likewise dated 8 February 2000 and completed for the purpose of an MEB, shows: a. The applicant indicated he had recurrent back pain or back injury and foot trouble. b. The physician’s summary shows the applicant was undergoing epidural steroid injections into his spine for severe LBP, which he incurred in the summer of 1998. MRI shows disc protrusion and facet hypertrophy with malformation of thecal sac L4-S1. He also had left ankle reconstruction prior to military service. 6. An MEB Narrative Summary (NARSUM), dated 14 February 2000, shows: a. An MEB was directed by the flight surgeon due to the applicant’s severe lower back pain. His pain began on 29 July 1998 when the applicant injured the middle of his back doing squats as part of the unit physical training. He was treated with Naproxen, Flexural, and Percocet. For about 2 weeks he could not stand erect then he began rigorous physical therapy over 1 month and had approximately 80 percent improvement by 17 September 1998 and he began flying again in late September 1998. Subsequent to flying he began to experience generalized low back pain around 5 December 1998 and developed acute tailbone and sacral pain in January 1999. His pain persisted and he was grounded from flying on 24 February 1999. He became nonfunctional in his duties as an aviator despite numerous treatments including physical therapy and both temporary and permanent facet blocks and epidural steroid injections, with which he was 100 percent compliant. b. The imaging studies showed the plain film studies of the lumbar spine are normal. MRI of the lumbosacral spine shows evidence of facet hypertrophy causing deformity along the thecal sac bilaterally at the L4-L5 and L5-S1 levels. He had mild disk protrusion at the L5-S1 level to the left side. He also had a mild disk bulge at L4-L5. There was also evidence of slight desiccation of the L5-S1 disk. c. His diagnosis was L4, L5, and S1 radiculopathy with some facet hypertrophy causing deformity along the thecal sac at those levels. These diagnoses severely limited his capacity to function in as a helicopter pilot, as he could not sit in the cockpit of a rotary wing aircraft for hours at a time or tolerate the vibratory forces of the aircraft and other sudden motions required to fly in his present condition. The medical examiner determined the applicant failed to meet retention criteria in accordance with Army Regulation 40-501 (Standards of Medical Fitness) 7. His commander’s performance statement, dated 14 February 2000, shows: a. The applicant was unable to perform his primary duties as a helicopter pilot due to a back injury. Pilot duties in support of unit rotations require long hours in the aircraft, and with the back pain the applicant was experiencing, he was not able to fly at all. b. It was his commander’s opinion that it would not matter where in the world the applicant were assigned, he would still not be able to fly. The applicant last flew in February 1999, resulting in his current grounding. Since then he has flown as a passenger on two occasions that resulted in time spent on quarters or convalescent leave. 8. A DA Form 3947 (MEB Proceedings) shows: a. An MEB convened on 14 February 2000 to consider the applicant’s conditions of L4, L5 and S1 radiculopathy with some facet hypertrophy causing deformity along the thecal sac at those levels. b. It was determined those conditions did not exist prior to service and were permanently aggravated by service. He was referred to a PEB. c. The applicant indicated on the form he did not desire to continue on active duty and he agreed with the MEB’s findings. 9. A DA Form 3349 (Physical Profile), dated 15 February 2000, shows the applicant was given a permanent physical profile rating of “4” in lower extremities for severe low back pain due to lumbar radiculopathy. The physical profile limited him from participating in most functional activities, the Army Physical Fitness Test, and required an MEB/PEB. 10. A DA Form 199 (PEB Proceedings) shows the following: a. A PEB convened on 25 February 20000 to consider the applicant’s conditions of L4, L5, S1 radiculopathy and found the applicant physically unfit with a recommended combined rating of 20 percent and that his disposition be separation with severance pay. b. The condition was believed to be due to facet hypertrophy sufficient to deform the thecal sac, confirmed by EMG studies. The range of motion of his back was well preserved. Straight leg raise was positive on the left and strength was normal throughout the lower extremities. His major impairment was pain which is progressive with long sitting or running, prohibiting performance of pilot duties. c. His functional limitations in maintaining the appropriate level of mobility, caused by the physical impairments recorded above, made him medically unfit to perform the duties required of a Soldier of his rank and primary specialty. d. It was noted that his disability rating is less than 30 percent. For Soldiers with a disability rating of less than 30 percent and with less than 20 years’ service, regulatory guidance requires separation from the service with severance pay. e. The applicant was advised of the findings and recommendations of the PEB, and having received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto concurred with the PEB and waived a formal hearing of his case on 25 February 2000. 11. A DA Form 5893-R (PEBLO (Physical Evaluation Board Liaison Officer) Counseling Checklist/Statement, shows the applicant was counseled on 25 February 2000 regarding the PEB adjudication, rights available to him, his benefits, and the rebuttal procedures. 12. His DD Form 214 shows he was honorably discharged on 19 April 2000, after 5 years, 5 months, and 19 days of net active service this period, due to disability with severance pay in the amount of $33,923.40. 13. The applicant provided a VA letter, dated 22 January 2018, which shows he has a service-connected disability rating of 60 percent. It does not list the disabling condition or the effective date of the rating. 14. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents provided in the VA's Joint Legacy Viewer (JLV). Due to the period of time of the applicant's service there are no records in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), or Health Artifacts Image Management Solutions (HAIMS). The following findings and recommendations are made: The applicant asserts that he was not given the option of military medical retirement at the time of his separation. The record indicates that the applicant was referred to the MEB for lumbar radiculopathy. This is the only condition listed on his profile dated 15 February 2000. The condition did not meet retention standards IAW AR40-501, Chapter 3, and was referred to the PEB. The PEB determined the condition was unfitting, and assigned a disability rating of 20%. The applicant did have other medical conditions present at the time of his referral to the DES, including a history of left ankle reconstruction in 1992, however no other medical condition was deemed to not meet retention standards or was determined to be unfitting. It is important to note that only those conditions founf to be unfitting by the PEB are assigned Army disability ratings. It is also important to note the VA rating percentages do not correlate with Army disability ratings since VA disability ratings are determined using different policies and guidance than the Army uses to determine disability ratings. Additionally, an Army disability rating of 30% or greater would qualify a Soldier for military medical retirement. It is not the Soldier’s option to choose military medical retirement. From the record it appears that the PEB used the appropriate VASRD code to determine the applicant’s disability percentages. Therefore, based on the available information, there is insufficient evidence to warrant a change in the applicant’s Army disability percentages or consideration for military medical retirement. 15. 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 may compensate the individual for loss of civilian employability. 16. Title 38, USC, 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 VA rating does not establish an error or injustice on the part of the Army. 17. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. 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 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. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. 2. The Board concurred with the opinion of the ARBA Medical Advisor, who found no evidence of error in the disability rating the applicant received prior to his discharge. The Board found insufficient evidence to support a conclusion that the applicant should have received a higher disability rating. By a preponderance of the evidence, the Board determined the applicant's discharge with severance pay was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XX :XXX 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (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 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. 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, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180002857 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1