ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20180015591 APPLICANT REQUESTS: consideration for a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Department of Veterans Affairs (VA) 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 received a 20 percent disability rating when he was discharged in 1997. Since then, he has received a 100 percent permanent and total unemployability rating from VA. He would like to see if his records can be changed to a retirement status. 3. The applicant was issued a permanent P3 profile due to his intervertebral disc syndrome with herniated nucleus pulposus and osteochondritis dissecans of the right ankle. 4. On 26 June 1996, a medical evaluation board (MEB) found the applicant unfit due to intervertebral disc syndrome with herniated nucleus pulposus and osteochondritis dissecans of the right ankle. The MEB referred the applicant to a physical evaluation board (PEB). On 2 July 1996, the applicant agreed with the board’s findings and recommendation. 5. On 17 July 1996, a PEB found the applicant unfit and recommended a combined disability rating of 20 percent with severance pay if otherwise qualified. On 25 July 1996, the applicant concurred with the board’s findings and waived a formal hearing of his case. 6. On 28 August 1996, the applicant was discharged due to disability with severance pay. 7. On 26 June 2019, the ABCMR obtained an advisory opinion from a Medical Advisor with Army Review Boards Agency (ARBA), who states, in part, VA disability rating and the Army disability rating do not necessarily correlate with one another, and did not do so in this case. VA disability rating can change with time, and has in the applicant’s case. However, this change in the VA disability rating does not change the Army disability rating. The Army disability rating reflects only the degree of disability present at the time of discharge. A review of the available documentation found insufficient evidence of a medical disability or condition that would support a change to the character(s), reason(s), rated condition(s), disability determination(s), disability rating(s), and/or combat relatedness for the discharge in this case. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. Congress grants that role and authority to VA, operating under a different set of laws. A copy of the complete medical advisory was provided to the Board for their review and consideration. 8. On 1 July 2019, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. 9. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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. a. MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status. If an MEB determines a Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. A Soldier may provide additional information to the medical treatment facility (MTF) commander to forward to the PEB. The information may be from the unit commander, supervisor, or other persons who have knowledge regarding the effect the condition has on the Soldier’s ability to perform the duties of the office, grade, rank, or rating. b. Upon receipt of a case by the PEB, the case file will be reviewed to ensure it is complete. If documents are missing, action will be taken to complete the file. When the case file is complete, it may be referred to the board for evaluation. The PEB may return a case to the MTF commander for additional information. However, efforts should be made to resolve all issues without returning the case. c. Based on its findings the PEB makes recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. d. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. For an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. 10. Title 10, U.S. Code (USC), section 1201 (10 USC 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. 11. 10 USC 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. 12. 38 USC 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. 13. 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. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. VA can evaluate a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency’s examinations and findings. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and a medical advisory opinion. The Board considered the applicant’s statement, the medical evaluation received at the time of separation and his the reason for his discharge with medical separation pay. The Board considered his current VA Rating and the conclusions of the advising official regarding his unfitting condition at the time of separation. The Board found insufficient evidence to support a change to the rating he received at separation and to change the reason for discharge. The Board determined that the reason for his separation in 1996 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. ADMINISTRATIVE NOTE(S): Not Applicable ? 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. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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. a. MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status. If an MEB determines a Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. A Soldier may provide additional information to the medical treatment facility (MTF) commander to forward to the PEB. The information may be from the unit commander, supervisor, or other persons who have knowledge regarding the effect the condition has on the Soldier’s ability to perform the duties of the office, grade, rank, or rating. b. Upon receipt of a case by the PEB, the case file will be reviewed to ensure it is complete. If documents are missing, action will be taken to complete the file. When the case file is complete, it may be referred to the board for evaluation. The PEB may return a case to the MTF commander for additional information. However, efforts should be made to resolve all issues without returning the case. c. Based on its findings the PEB makes recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. d. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. For an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. 3. Title 10, U.S. Code (USC), section 1201 (10 USC 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. 4. 10 USC 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. 5. 38 USC 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. 6. 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. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. VA can evaluate a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency’s examinations and findings. ABCMR Record of Proceedings (cont) AR20180015591 4 1