RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            8 September 2005
      DOCKET NUMBER:   AR20040008088


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Larry J. Olson                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a change of his disability rating
from
20 percent (%) to 30%.

2.  The applicant states, in effect, the Army disobeyed, failed to
consider, and or ignored the governing regulation is establishing his
disability rating.

3.  The applicant provides the following documents in support of his
application:  Separation Orders; Separation Document (DD Form 214); Self-
Authored Statement; and Physical Evaluation Board (PEB) Proceedings and
related medical documents.

CONSIDERATION OF EVIDENCE:

1.  On 8 March 2004, a Medical Evaluation Board (MEB) recommended the
applicant’s case be evaluated by a PEB after diagnosing his condition as
chronic left hip pain and lower back pain.

2.  On 25 March 2004, the applicant concurred with the MEB findings and
recommendations.

3.  On 4 April 2004, the applicant’s case was evaluated by a PEB convened
at Fort Lewis, Washington.  The PEB found that the applicant was physically
unfit and recommended a disability rating of 10% based on chronic left hip
pain due to anterior femoroacetabular impingement with limited range of
motion and 0% due to chronic back pain secondary to multilevel degenerative
disc disease.

4.  On 23 April 2004, the applicant non-concurred with the PEB findings and
demanded a formal hearing with personal appearance and appointed counsel.

5.  On 25 May 2004, a PEB convened at Fort Lewis to reconsider the
applicant’s case.  The PEB found the applicant unfit for further military
service based on the original two impairments and assigned a combined
disability rating of 20%, 10% based on chronic left hip pain due to
anterior femoroacetabular impingement with limited range of motion and 10%
due to chronic back pain secondary to multilevel degenerative disc disease.
 The PEB recommended the applicant’s separation with severance pay.

6.  On 25 May 2004, after discussion with his attorney, the applicant
concurred with the findings and recommendations of the PEB, and waived his
right to a formal hearing.
7.  On 4 June 2004, the United States Army Physical Disability Agency
(USAPDA) during its review of the applicant’s case, made an administrative
change to the rating code to properly reflect that hip pain was the reason
the applicant was unfit, not limitation of motion of the thigh/hip.

8.  On 17 June 2004, the USAPDA change was presented to the applicant, and
on 12 July 2004, the applicant responded and indicated that his hip rating
should be 20%, and provided a supporting letter from a United States Navy
(USN) Judge Advocate General (JAG) attorney.

9.  On 7 September 2004, the USAPDA responded to the applicant’s 12 July
2004 disagreement letter by advising the applicant to discuss the issues
with his attorney since he had been contacted by representatives of the
USAPDA and provided an explanation on why the disability rating in his case
was correct.

10.  On 7 September 2004, the applicant was honorably discharged, by reason
of physical disability with severance pay under the provisions of paragraph

4-24b(3), Army Regulation 635-40.  The DD Form 214 he was issued confirms
he completed a total of 5 years, 8 months and 27 days of active military
service and held the rank of specialist/E-4 (SPC/E-4).

11.  In connection with the processing of this case, an advisory opinion
was obtained from the USAPDA Deputy Commander.  This official indicates the
applicant is requesting his hip rating be changed to reflect 20% under code
5252 and claims he received bad advice from his attorney which he based the
acceptance of the reconsidered PEB findings and recommendations.  He
further indicates no one in the USAPDA was privy to the conversations
between the applicant and his attorney; however, the recommendation to
accept the PEB’s ratings appears to have been sound and consistent with the
Agency’s review.  He further indicates the 20% rating was fully considered
and no changes were recommended by the USAPDA.

12.  The USAPDA Deputy Commander further indicates that when the Agency
made the administrative change to the DA Form 199 on 17 June 2004, the
change was not as complete as it should have been.  The PEB included
language regarding the rating for degenerative arthritis, but that should
have been deleted along with the code 5252.  The MEB’s diagnoses were pain
and the applicant concurred with those diagnoses.  The PEB rated the hip as
code 5099-5003, the 5252 code was only meant to reflect the location of the
problem.  If the PEB had intended to rate for arthritis, the code would
have been 5003 only.  Rating 5099-5003, and having pain as the main
impediment to performance, reflected a rating for pain in accordance with
the policy in effect at the time.
13.  The Deputy Commander, USAPDA concludes his opinion by stating that
even though the rationale and rating codes could have been better drafted,
articulated and administratively corrected, the 10% rating for hip pain was
always correct.  He further indicates the applicant fails to provide new
evidence to support his contention, and the fact his hip may have some
arthritic changes does not equate to those arthritic changes being the
cause for any mechanical hip limitation of motion.  The data clearly
denotes that pain, not bone or muscle, was the limiting factor on movement
and such limitation is not independently ratable.  He concludes by stating
there was no error or injustices in the applicant’s disability findings;
and the disability findings are correct, supported by substantial evidence
and are not contrary to law or regulation.  He finally recommends the
applicant’s records remain unchanged.

14.  On 31 August 2005, the applicant submitted a rebuttal to the USAPDA
advisory opinion.  The applicant claims he was misrepresented by counsel,
who insisted the highest possible rating the applicant could receive for
left hip loss of motion was 10%.  He further claims the USAPDA wrongfully
changed the PEB results after the applicant had agreed to the PEB results.
He further claims his repeated inquires were ignored by the USAPDA up until
the date of his separation.  He claims the USAPDA acted wrongfully in
removing the code 5252 from the PEB proceedings and that he has proven he
was misrepresented by his military counsel.  He states he is in pain 24
hours a day and the medical evidence showed his loss of joint motion is no
the result of pain, rather it is the result of mechanical damage or a
stress fracture.

15.  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 or her office, grade,
rank, or rating.

16.  Section V of the disability regulation contains guidance on the review
of the USAPDA.  It states, in pertinent part, that the USAPDA will review
any case which has been returned to the PEB for reconsideration or
rehearing.  It further states that based upon review of the PEB
proceedings, the USAPDA may issue revised findings providing for a change
in disposition of the Soldier or change in the Soldier's disability rating.
 In the case of revised findings, the USAPDA will furnish the Soldier a
copy of the revision, and after considering the Soldier’s rebuttal, the
USAPDA may accept the rebuttal, concur with the original recommendations of
the PEB, or adhere to the revised findings.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his disability rating should be
changed to 30%; and that he was misrepresented by counsel were carefully
considered.  However, there is insufficient evidence to support his
application.

2.  The evidence of record confirms the applicant disability processing was
accomplished in accordance with the governing law and regulation.  It
further shows that the USAPDA in accomplishing it review responsibilities
revised the PEB findings based on the medical evidence, to include the MEB
proceedings and diagnosis, and satisfied its regulatory responsibility to
notify the applicant of the revision.  It further shows that after
consulting with his counsel, the applicant accepted the revised findings
and was separated by reason of physical disability with severance pay
accordingly.

3.  The veracity of the applicant’s argument that his loss of joint motion
is due to mechanical damage, or a stress fracture is not in question.
However, the medical evidence, as documented in the MEB and PEB proceedings
and the supporting medical evidence, confirm he was found unfit for
continued service based on his pain related disability, which was confirmed
by the USAPDA review. As a result, there is an insufficient evidentiary
basis to support granting the requested relief.

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
provide any new evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WDP_  __JTM __  __LJO __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            ____William D. Powers____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040008088                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/08                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2004/09/07                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability-Severance Pay                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  177  |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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