MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 26 SEPTEMBER 2002
         DOCKET NUMBER: AR2002073053

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Karen Y. Fletcher		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: Physical disability retirement.

APPLICANT STATES: That he was released from active duty with a 30 percent disability rating. His condition is now rated as 100 percent.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted in the Army for four years on 6 December 1983. On 1 May 1985 he was promoted to pay grade E-4. On 8 May 1987 he received nonjudicial punishment under Article 15, UCMJ, for failing to go to his place of duty.

The applicant’s medical records show that he was treated at various times during his service for low back pain, pain to his left knee, and pain to his thumb.

An 11 August 1987 narrative summary prepared by a physician of Womack Army Community Hospital at Fort Bragg, North Carolina, shows that the applicant was admitted through the Womack Emergency Room with a complaint of depression. The summary indicated that the applicant had a history of cocaine, LSD, and significant marijuana use over his teenage years and into the military; however, the last few years his drug use had been primarily Quaaludes and marijuana, even to just prior to hospitalization. He denied adult illnesses except for his drug history, alcohol abuse, and rapid cycling mood swings. The applicant’s condition was diagnosed as bipolar disorder, manic; alcohol abuse; and poly substance disorder – marijuana, LSD, cocaine, Quaaludes. The physician indicated that it was planned to evacuate the applicant by air to a medical center with command supervised Antabuse, and frequent drug urine screen tests, with an extended period of sobriety for reevaluation. He indicated that a medical board might be required for an affective disorder.

A 23 August 1987 ADAPCP (Alcohol and Drug Abuse Prevention Control Program) Clinic Progress Report (DA Form 4466) shows that the applicant was enrolled in an alcohol and drug prevention control program, that his counselor considered his progress during rehabilitation as fair, and that his commander indicated his efficiency as satisfactory and his conduct as unsatisfactory.

On 22 October 1987 the applicant was assigned to the Medical Holding Company at Walter Reed Army Medical Center (WRAMC) with a reporting date of 29 October 1987. His orders show that he had been admitted to WRAMC on 23 August 1987.

The applicant was AWOL from 23 November 1987 to 17 December 1987.

On 22 December 1987 the applicant signed a statement agreeing to remain on active duty beyond his separation date in order to complete hospital care or physical disability [processing].

The applicant was placed on the temporary disability retired list (TDRL) on 26 February 1988 with a 30 percent disability rating. He had 4 years, 1 month, and 27 days of service.

On 28 September 1989 the applicant was removed from the TDRL and discharged from the Army because of a permanent physical disability with a 10 percent disability rating.

On 30 May 2001 the Department of Veterans Affairs (VA) certified that the applicant had a 100 percent service-connected disability rating.

Neither the applicant’s Medical Evaluation Board (MEB) proceedings, his Physical Evaluation Board (PEB) proceedings, nor any examination reports or proceedings subsequent to the PEB, are available to this Board.

Army Regulation 635-40 establishes the Army physical 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. It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status. A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3. If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a Physical Evaluation Board (PEB).

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

Army Regulation 635-40 provides that an individual may be placed in a TDRL status for a maximum period of 5 years when it is determined that the individual is qualified for disability retirement under Title 10, United States Code, section 1201, but for the fact that his or her disability is not stable and the individual may recover and be fit for duty, or the degree of severity may increase or decrease so as to warrant a change in the disability rating. A soldier on the TDRL must undergo a period medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the soldier was temporarily retired. Medical examiners will recommend removal of the soldier’s name from the TDRL as soon as the soldier’s condition permits. A soldier will be removed from the TDRL and separated with severance pay if the soldier is unfit because of the disability from which the soldier was placed on the TDRL; and either the disability has stabilized at less than 30 percent; or the disability, although not stabilized, has improved so as to be ratable at less than 30 percent.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.

Title 38, United States Code, sections 310 and 331, permits the VA to provide treatment and to award compensation for disabilities which were incurred in or aggravated by active military service.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. Because neither the MEB or PEB proceedings are available, it is not possible to determine the reason that the applicant was placed on the TDRL. Nor is it possible to determine why the applicant was removed from the TDRL and discharged with a 10 percent disability rating. He was discharged 13 years ago after being on the TDRL for 19 months. It is more than probable that he underwent a medical examination subsequent to his placement on the TDRL, and that a PEB determined that his condition had improved, resulting in his 10 percent disability rating. However, the medical examinations and proceedings are simply not available. There is a presumption that what the Army did in the applicant’s case was correct. He has not provided any evidence otherwise.

2. An award of a VA rating does not establish error or injustice in the Army rating. 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. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's employability. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request. There is insufficient evidence to grant the applicant’s request for physical disability retirement.

4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__RVO__ __RJW__ __KYF __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002073053
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020926
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.