RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 24 FEBRUARY 2004
         DOCKET NUMBER: AR2003089279


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

Mr. Carl W. S. Chun		Director
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Ms. Margaret V. Thompson		Member
Mr. Lawrence Foster		Member

         The applicant and counsel if any, did not appear before the Board.

         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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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that her 1994 permanent Army disability rating of 10 percent be increased to 100 percent.

2. The applicant states, in her October 2002 application to the Board, that she recently lost her position with the United States Post Office because of the kidney disease which was the basis of her medical discharge from the Army. She states that she was granted a 10 percent disability rating but maintains that she should have received a higher rating because of the progressiveness of her disease.

3. The applicant states that she will never get any better and that it is possible that ultimately she will need dialysis or a kidney transplant. She states that working has only made the situation worse, that she was not properly advised regarding her health, and that because she was not compensated properly her disease got worse due to the stress and various employments.

4. The applicant provides a copy of her 1991 discharge document, documents associated with her 1994 removal from the Temporary Disability Retired List (TDRL), her release from the post office, a statement from a Department of Veterans Affairs (VA) physician, extracts from her service and VA medical records, and information concerning her kidney disease extracted from the internet.

5. A Department of Defense Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) was accepted in lieu of a Department of Defense Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. [United States] Code Section 1552).

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice which occurred on
18 April 1994. The application submitted in this case is dated October 2002.

2. Title 10, U.S. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant’s military records were not available to the Board. Information contained herein was reconstructed entirely from documents provided by the applicant.
4. The applicant entered active duty as a Regular Army Soldier on
16 September 1982.

5. According to extracts from her service medical records, provided by the applicant in support of her request, in August of 1985 she was diagnosed with polycystic kidney, which was “probably hereditary,” after complaining of back pain. In July 1986 she was admitted to a military hospital in Germany for “left flank pain.” Her polycystic kidney disease (numerous cysts in the kidney) was determined to be stable and after treatment of her pyelonephritis (inflammation of the kidney and its pelvis), improvement was shown. She was discharged to full duty and given a profile for no physical training for two weeks, with follow-up medical visits.

6. Between 9 January and 3 February 1989 the applicant saw medical personnel on several occasions for bilateral shoulder pain, which was attributed to an injury in 1987.

7. In March 1991 the applicant was hospitalized from 4 days for pain associated with her “adult polycystic kidney disease.”

8. Although documents associated with the applicant’s 1991 Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) were not available to the Board, the separation document provided by the applicant in support of her request indicates that she was honorably discharged on 15 October 1991 by reason of physical disability. Her name was placed on the TDRL. Her separation document notes that she had nearly 10 years of active Federal service, had been awarded four Army Good Conduct Medals, an Army Commendation Medal, and four awards of the Army Achievement Medal during her military service. At the time of her separation she held military specialties of 76Y (Unit Supply Sergeant) and 74D (Computer/Machine Operator).

9. On 14 July 1993, while the applicant was still on the TDRL, she was admitted to the Naval Medical Center in San Diego with a chief complaint of “depressed and hearing a voice.” The narrative summary of her hospitalization noted that this was the first psychiatric admission for the applicant:

with a presentation of depressed mood and command auditory hallucinations in the context of a perception of needing dialysis for renal disease. Upon discontinuation of recently prescribed medications…there was some mood elevation and decrease of the hallucination, and upon learning that dialysis was NOT projected for her for another 15-20 years she quickly became euthymic and no longer heard the “voice.”

10. She was released from the hospital on 19 July 1993.

11. In August 1993 a TDRL report “to replace a previously dictated but apparently missing report that was done on 04 Aug 93” was completed. The report noted that the applicant had undergone an evaluation of 4 August 1993 with the diagnosis of autosomal dominant polycystic kidney disease, nephrolithiasis, intermittent hypertension, and hypercholesterolemia. She had previously been examined in August 1992.

12. During the applicant’s August 1993 examination she “continues to complain of significant left flank pain” similar to the pattern established on her previous TDRL examination and had not changed significantly. She continued to take frequent pain medication and at the time of her examination was not working. Other than difficulty controlling her blood pressure, the remaining tests were normal and her original diagnoses remained unchanged with the addition of a new diagnosis of depressive symptoms. The applicant was instructed to return for further monitoring and control of her blood pressure and “again counseled on adhering to a low cholesterol diet.” The examining physician recommended that the applicant remain on the TDRL and noted that it was “unlikely with her symptom complex that she will ever be able to return to full duty.”

13. In November 1993 the applicant concurred with the information in the TDRL examination summary.

14. Documents associated with the finalization of her disability processing were not available to the Board, however an order issued on 18 April 1994 by the United States Total Army Personnel Command removed the applicant’s name from the TDRL and with a 10 percent disability rating. The orders indicate that she was authorized severance pay.

15. A 10 October 2002 medical statement, authored by a VA physician, detailed the applicant’s medical problems and the progression of her kidney disease. The statement indicated that the applicant had been advised against heavy lifting, prolonged standing or travel, and to avoid infection as much as possible. He concluded by stating that the “degree of stress associated with her current employment and in light of the severity and prognosis of her disease, I have advised [the applicant] to see[k] medical retirement.” It is unclear from the statement if it was intended to support her release from the post office or to increase her Army disability rating. However, based on her date of release from the post office it was likely in support of her retirement from that position.

16. The document, submitted by the applicant in support of her request, which notes that she was “totally disabled for useful and efficient service” from the post office effective 27 November 2002, appears to indicate that she began working for the post office in 1997.

17. The Army Physical Disability Evaluation System sets forth policies, responsibilities, and procedures that apply in determining whether a member is unfit because of physical disability to perform the duties of his office, grade, rank, or rating. If a member is found unfit because of physical disability, it provides for disposition of the member according to applicable laws and policies. The objectives of the evaluation system are to maintain an effective and fit military organization with maximum use of available manpower and to provide benefits for eligible members of the Army whose military service is ended because of a service-connected disability.

18. The Army Physical Disability Agency (USAPDA) has noted in advisory opinions in similar cases that confusion frequently arises from the fact that the Army and the Department of Veterans Affairs (DVA) use different rating systems. While both use the Veterans Administration Schedule for rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army. The Army rates only conditions determined to be physically unfitting, because they adversely affect the individual’s ability to perform assigned duties, thus compensating the individual for loss of a career. The DVA, on the other hand, may rate any service-connected impairment, in order to compensate the individual for loss of civilian employability or social functioning. The USAPDA has also pointed out that military disability ratings are based upon the degree to which a medical condition effects the ability to perform duty and not upon the diagnosis or name attached to the condition.

19. Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher DVA 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 DVA, 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 civilian employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment. Furthermore, unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. A common misconception is that veterans can receive both a military retirement for physical unfitness and a DVA disability pension. By law, a veteran can only be compensated once for a disability. If a veteran is receiving a DVA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the DVA pension and military retirement.

DISCUSSION AND CONCLUSIONS:

1. While the absence of all of the documents associated with the applicant’s disability processing makes it impossible to determine the basis for her 10 percent disability rating in 1994 when her name was removed from the TDRL, the applicant has not presented any medical evidence which indicates that the rating was in error or unjust.

2. Additionally, although the Army’s disability rating documents were not available, it should be noted that the applicant would have been involved in the entire process, given opportunities to appeal decisions and to provide additional documentation or information as she deemed appropriate. She has provided no evidence indicating that she was unsatisfied with the Army’s rating at the time it was rendered in 1994.

3. The applicant’s contention is, in effect, that she should have received a higher Army disability rating because of the progressive nature of her kidney disease. However, it should be noted that the Army rates an individual’s medical conditions based on how they impact or impair that individual’s ability to perform his or her military duties at the time of the rating. Army ratings are not intended to compensate an individual for future lost earning from the civilian sector or to adjust ratings as a condition may progress over time. Such disability rating actions would fall under the purview of the Department of Veterans Affairs.

4. While it is not clear if the applicant is receiving any disability compensation from the DVA, such compensation would not necessarily demonstrate any error or injustice in the Army’s rating. The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the DVA does not compel the Army to modify its rating.

5. In order to justify correction of a military record the applicant must show, 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.

6. Records show the applicant should have discovered the error or injustice now under consideration on 18 April 1994; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 17 April 1997. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.
BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__RVO __ __MVT__ __LF ___ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.




                  Raymond V. O'Connor, Jr.
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089279
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040224
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.