RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 10 FEBRUARY 2004
         DOCKET NUMBER: AR2003089539


         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. John N. Slone		Chairperson
Mr. Richard T. Dunbar		Member
Ms. Linda M. Barker		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 his records be corrected to show that he was retired by reason of physical disability or that he be permitted to be retired for length of service.

2. The applicant states, in effect, that because of the length of his service and the extent of his medical conditions his request should be granted. He also states that his request for early retirement was denied.

3. In a self-authored statement, the applicant further defined the actions he wished the Board to take. He noted that his first option would be a regular retirement if he qualified for such an action. His second option would be to have his records corrected to show that he was medically retired rather than merely discharged because of his medical conditions. He states that if either of these options were not “reasonable” he would like to be granted an “early, 15-year retirement.” He states that while undergoing his disability processing he requested “the option of giving [him] an early retirement be considered” but the request was denied because he “was under medical review.”

4. He states that during the last year of his military service he was heavily medicated and as such some of his “decisions may not have been thoroughly reasoned out.” He specifically cites his accepting the medical discharge without appealing the decision, as an example. He also states that some of his military doctors tried to convince him that the symptoms he was experiencing were in his head. However, he notes that the Department of Veterans Affairs subsequently found “that there was a physical reason for the medical complaints [he] had.”

5. He states that he was on more medications than were listed on his final medical paperwork and that the PEBD (Physical Evaluation Board) “did not consider the effect of wearing bilateral hearing aids in a broadcast environment.”

6. The applicant provides extracts from his service personnel and medical records, extracts from this Department of Veterans Affairs (VA) medical records, and his VA rating decision.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice which occurred on
3 December 1997. The application submitted in this case is dated 21 April 2003.

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. Records available to the Board indicate that the applicant initially entered military service as a member of the United States Naval Reserve in March 1973 and served on active duty with the Navy between September 1973 and September 1977. Following his release from the Navy, he became a member of the Army National Guard and remained a member of that organization until April 1978. In September 1981 he returned to military service as a member of the National Guard and was discharged in April 1987 when he enlisted in the Army under the Delayed Entry/Enlistment Program. He entered active duty as a Regular Army Soldier on 15 May 1987 and was ultimately assigned duties as a broadcast journalist. His assignments included a tour of duty in Japan and Panama.

4. Copies of the applicant’s performance evaluation reports were not available to the Board. However, his records do indicate that he was awarded a Joint Service Commendation Medal, two Army Achievement Medals, and three Army Good Conduct Medals.

5. The applicant’s extensive service medical records indicate that he was treated for a variety of ailments during his military career. His hearing loss dates back to a 1974 examination. He noted hamstring strain as early as 1990 and in May 1987 he was treated for lower back pain after doing push-ups. He began seeking treatment for chronic dizziness in 1995 and for pain and swelling in his joints in 1996. His service medical records note that his urine, serum, blood tests, CT (Computed Tomography) scans, and X-rays were consistently within normal limits.

6. A 9 July 1992 memorandum summarized an “alleged misapplication of insecticide” which occurred on 23 June 1992 in a building at Fort Clayton. The memorandum notes that an insecticide was applied inside a building to control mosquitoes and that as a result of the application of the pesticide, a Soldier (the applicant) who was still working in the building was exposed to the insecticide aerosol. The exposure resulted in medical symptoms consistent with poisoning by an organophosphate insecticide.

7. On 22 July 1992 the applicant was issued a permanent (P-3) physical profile for his lower extremities and his hearing loss. In addition to his hearing loss, his



chronic left leg hamstrings strain was identified as the basis for the permanent profile.

8. In September 1992 the applicant appeared before a MMRB (MOS/Medical Retention Board). The MMRB concluded that the applicant’s permanent profile did not preclude satisfactory performance of his duties.

9. In December 1996 the applicant underwent a neurology evaluation after complaining of multiple incidents of memory difficulties, nervousness, and dizziness, which the applicant said he had been experiencing since a 1993 (sic) exposure to insecticide. The evaluating physician noted that testing failed to reveal any deficit, and that he was unaware of a single diagnosis to unite the applicant’s symptoms and that his memory problem did not appear to be organic by history or testing.

10. In February 1996 medical personnel treated the applicant after he twisted his back while helping to conduct an equipment inventory. The line of duty investigation noted that the applicant experienced significant back pain when he was moving a small cabinet away from the wall.

11. In May 1997 the applicant was placed in a weight control program. By November of 1997 he met the body fat standards for his age, although he still exceeded the weight limitations, and the flag on his records was lifted. The applicant’s service medical records indicate that he received weight and nutritional counseling prior to 1997 when his records were flagged for exceeding the weight standards.

12. On 4 June 1997 the applicant’s 1992 profile was expanded to include his chronic low back pain. The physician issuing the profile noted that the applicant could “perform current limited radio studio duties, but is incapable of worldwide assignment” in his MOS (Military Occupational Specialty).

13. A 9 June 1997 memorandum noted that the applicant had passed a physical fitness test on 7 May 1997 but that he was “marginally physically capable of performing” his duties. The memorandum also noted that a request to delete the applicant’s name from an assignment to Korea was recently initiated pending the results of a MMRB.

14. On 7 October 1997 the applicant underwent an informal PEBD. That board concluded that the applicant’s “low back pain, and left leg pain with an essentially normal CT scan” (diagnoses 1 and 2) rendered him unfit for continued military




service. He was granted a 10 percent disability rating and the board recommended that he be discharged with entitlement to severance pay if otherwise eligible. The board noted that the applicant’s other four diagnoses, which were not defined on the PEBD, were not unfitting and therefore not ratable.

15. Documents associated with the applicant’s MEB (Medical Evaluation Board), which would also have included a medical evaluation summary, were not available to the Board, or provided by the applicant.

16. The applicant concurred with the findings and recommendation of the informal PEBD and waived his entitlement to a formal hearing.

17. On 3 December 1997 the applicant was honorably discharged by reason of physical disability. His separation document indicates that he had accumulated approximately 14 years and 6 months of active Federal service and 10 years of service in Reserve Components. At the time of his discharge he received more than $48,000.00 in disability severance pay.

18. In 1998 the VA granted the applicant a 30 percent combined rating for his tinnitus, joint pain, lumbosacral strain and left hamstring strain, all of which were independently rated at 10 percent.

19. In November 2001 the VA granted the applicant a combined service connected disability rating of 80 percent. He received ratings of 30 percent for anxiety, 20 percent for fibromyalgia (a chronic disorder associated with widespread muscle and soft tissue pain, tenderness, and fatigue) with peripheral neuropathy left lower arm and 20 percent for the same condition in his right lower arm, 10 percent for the fibromyalgia condition in his left lower leg and 10 percent for that same condition in his right lower leg. The ratings were all retroactive to
30 January 2001.

20. In March 2003 the applicant’s petition to have his VA disability effective the day after his discharge from active duty in 1997 was approved.

21. 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.

22. 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 (VA) 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 VA, 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.

23. Title 38, United States Code, 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 higher 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 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 VA 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 VA 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 VA disability pension. By law, a veteran can only be compensated once for a disability. If a veteran is receiving a VA 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 VA pension and military retirement.



24. Department of Defense Instructions 1332.38 states that soldiers who are being separated for physical disability who have 15 but less than 20 years of service and whose unfitting conditions are not due to the soldier's intentional misconduct or willful neglect or incurred during a period of unauthorized absence shall be afforded the opportunity to elect separation for physical disability or to apply for, and if approved, non disability retirement under the temporary early retirement authority (TERA) under title 10, United States Code 3911. This authority expired on 31 December 2001.

25. Army Regulations provided for the voluntary retirement of Regular Army Soldiers, with entitlement to an immediate annuity, when the individual has at least 20 years of active Federal service. Reserve Component Soldiers become eligible for retirement, at age 60, after completing 20 years of qualifying service. The last six years of qualifying years must have been as a member of a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1. The available evidence confirms that the applicant was discharged from active Federal service in December 1997 as a result of his “low back pain, and left leg pain with an essentially normal CT scan.” His service medical records do not contain any evidence which would have justified a higher rating or ratings for any other conditions not identified by the applicant’s PEBD.

2. The applicant's contention that his medication or unaddressed medical complaints somehow affected the outcome of his Army disability processing is not supported by the evidence of record. The applicant, who would have been familiar with his medical ailments, at the time of his disability processing, concurred with the findings and recommendation of his informal PEBD. He has provided no evidence that shows his decision process was impaired due to his medications.

3. The applicant did not have sufficient qualifying service to be eligible for a Regular Army, Reserve Component, or early retirement program.

4. The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA 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 3 December 1997; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 December 2000. 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

__JNS __ __RTD __ __LMB __ 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.




                  ____ John N. Slone______
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089539
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040210
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.