IN THE CASE OF: BOARD DATE: 24 April 2020 DOCKET NUMBER: AR20180013876 APPLICANT REQUESTS: an increase in his physical evaluation board (PEB) disability rating in order to qualify for medical 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 Veteran Affairs (VA) Rating Decision 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 the military rated his disabilities at 10 percent; however, VA gave him a 30 percent disability rating effective the day following his discharge. His service representative informed him he should have been medically retired if his disability rating was 30 percent or more. 3. On 16 August 1993, the applicant was issued a permanent P3 profile due to a shoulder injury. The profile was approved on 27 August 1993. This profile did not require a change in the applicant's military occupational specialty (MOS). 4. On 27 April 1995, the applicant’s commander stated the applicant's medical condition did not preclude satisfactory performance of primary MOS requirements in his current position. The positions he can fulfill for his rank and MOS are limited by his medical condition. The applicant was not physically able to perform as a military police noncommissioned officer in a world-wide field environment. The applicant would be very limited in performing any duties which would require a physical activity greater than walking. 5. On 15 June, a Military Occupational Specialty/Medical Retention Board (MMRB) considered the evidence presented in the applicant’s medical records and recommended the applicant he referred to the Army's physical disability system. 6. A Medical Evaluation Board (MEB) referred the applicant to a Physical Evaluation Board (PEB) due to left shoulder pain status post mumford resection, low back pain, and recurrent renal calculi. The applicant did not desire to continue on active duty. On 5 February 1996, the applicant was informed of the approved findings and recommendation of the board; however, no block is checked indicating whether he agreed or disagreed with the recommendations and findings. 7. On 27 March 1996, a PEB found the applicant unfit due to left shoulder pain status post mumford resection with associated weakness of grip and tingling of the fingers. The conditions of low back pain, and recurrent renal calculi were found to be not unfitting and were not rated. The board recommended a combined rating of 10 percent and separation with severance pay. 8. A memorandum, from the U.S. Army Physical Evaluation Board, dated 19 April 1996, states the PEB reviewed his rebuttal and found no change to the original findings was warranted. Based on the available evidence, the board correctly adjudicated his case. The medical board narrative summary indicated his left shoulder range of motion was full with pain at the extremes. There was no medical board diagnosis for his hiatal hernia and therefore, could not be considered. The applicant could demand a formal board. 9. On 26 June 1996, the applicant was honorably discharged due to disability with severance pay. He completed 11 years, 3 months, and 3 days of net active service this period and 4 months, and 6 days of total prior active service. 10. The applicant provides a rating decision from VA showing he was awarded 10 percent service connection for left shoulder injury and 20 percent service connection for low back condition. 11. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents submitted by the applicant including the ABCMR application, various VA documents, various Army administrative documents, and the VA's Joint Legacy Viewer (JLV). Based on the time of the applicant’s service there are no records available in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), or Health Artifacts Image Management Solutions (HAIMS). The Agency Medical Advisor made the following findings and recommendations: The applicant entered the Army on 20 March 1985, and was separated on 26 June 1996 with a narrative reason of separation listed as “Disability, Severence Pay” with a character of service as honorable. He is requesting that his reason for separation be changed to medical retirement. On 16 August 1993 the applicant received a permanent profile for a shoulder condition that restricted his ability to perform his MOS and all functions necessary as a Soldier. A Military Medical Retention Board (MMRB) convened on 15 June 1995 and determined that the applicant should be referred to the Disability Evaluation System (DES) as his shoulder condition precluded him from adequately performing his current MOS or any other MOS. A Physical Evaluation Board (PEB convened on 27 March 1996 and found that the applicant’s shoulder condition did not meet retention standards and was unfit for further service in the Army. He was assessed with a combined rating of 10%, and a disposition of separation with severance pay. The reason for disability was not combat related, and did not occur as a result of interaction during an armed conflict or act of war. The VA assessed the applicant’s combined service connected rating at 30%. It is important to note that the ratings determined by the Army and the VA vary in how they are determined, and are governed by different laws and legislation. A rating of 30% by the VA does not necessarily correlate to the same 30% rating by the Army. Therefore, it is the opinion of the Agency Medical Advisor, based on the available information, that there is no current indication to refer the applicant’s case back to the DES for consideration of medical retirement. 12. 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). 12. 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. 13. 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. 14. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the medical conditions that led to an MEB and PEB, the determination of fitting and unfitting conditions that resulted in his medical separation, his rebuttal and his VA ratings. The Board considered the review and conclusions of the medical advising official and agreed that there was no evidence of additional unfitting conditions identified during his disability evaluation system processing that would disqualify him from further service. Based on a preponderance of evidence, the Board determined that the disability rating the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that 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. 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 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. Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 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) AR20180013876 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1