RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            14 December 2005
      DOCKET NUMBER:   AR20050003354


      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. John N. Slone                 |     |Chairperson          |
|     |Mr. Leonard G. Hassell            |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 review of the Physical Evaluation
Board (PEB) medical findings in his case.

2.  The applicant states, in effect, that the PEB findings were biased and
that he was penalized for not using military doctors.  He claims his
medical issues were never appropriately addressed by the United States Army
Physical Disability Agency (USAPDA) during its review of his appeals.  He
also outlines his view of his medical history and the record of treatment
for his medical conditions.  He concludes by stating that the preponderance
of the evidence will validate a correlation of impairments, which are all
service connected.  He further states the evidence will demonstrate that
natural progression of his condition.

3.  The applicant provides a self-authored statement and a 152 page packet
of documents that include medical treatment records and medical evaluation
papers.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army and
entered active duty on 1 February 1980.  He served in military occupational
specialty (MOS) 95B (Military Police), and the highest rank he held while
serving on active duty was master sergeant (MSG).

2.  On 16 November 1999, the applicant was honorably separated by reason of
disability and was placed on the Temporary Disability Retired List (TDRL).

3.  On 24 November 2003, while the applicant was on the TDRL, a Physical
Evaluation Board (PEB) convened at Fort Sam Houston, Texas to evaluate his
diagnosed conditions of depressive disorder, which was disability rated at
30 percent, and chronic bilateral ankle and bilateral knee pain, which was
disability rated at 10 percent, which were the basis for his placement on
the TDRL.  The PEB found he was physically unfit and recommended a combined
disability rating of 40 percent, and his permanent disability retirement.

4.  On 15 December 2003, the applicant nonconcurred with the PEB findings
and requested a formal hearing.  The applicant submitted an appeal and on
14 January 2004, the President of the PEB informed the applicant that after
having reviewed his rebuttal, the PEB found no change to the original
findings were warranted.

5.  On 5 February 2004, the President of the PEB notified the applicant
that after reviewing the medical documents submitted from two doctors, the
PEB found that no change to the original findings was warranted.

6.  On 23 February 2004, a PEB was convened at Fort Sam Houston, Texas to
consider the applicant’s appeal at a formal hearing.  Based on a review of
the medical evidence of record and the evidence submitted by the applicant,
the PEB upheld the original PEB findings and recommended the applicant be
permanently retired with a combined disability rating of 40 percent.

7.  On 24 March 2004, the PEB forwarded a memorandum to the USAPDA
indicating that the applicant had received the findings and recommendations
of the formal board, dated 23 February 2004, and since he failed to make an
election within the prescribed time limits, the case was being forwarded
for further processing.

8.  Department of the Army Orders Number D-61-2, dated 30 March 2004,
directed the applicant be removed from the TDRL based on his permanent
disability, and that he be permanently retired with a 40 percent
disability, effective 30 March 2004.

9.  The applicant provides extensive medical evidence, most of which were
seen and evaluated by the formal PEB that evaluated his case on 23 February
2004.  He also provides three new medical statements, dated 6, 8, and 17
January 2005, respectively.  The first, dated 6 January 2005, is from an
eye, ear, and throat doctor from a clinic in Panama, who diagnosed the
applicant with a bilateral sensorineural hearing loss, moderately severe,
due to acoustic trauma.  The second, dated 8 January 2005, is from a
Neurologist from a clinic in Panama who indicates the applicant has
suffered from multiple neurological problems since 1997, and that the
applicant’s neurological disorder has continued to deteriorate, which
affects his daily life.  The third statement, dated 17 January 2005, is
from an Orthopedic Surgeon from the American Hospital in Panama, who
examined the applicant on 17 January 2005, and diagnosed the applicant with
rheumatoid arthritis, lumbar spine osteoarthrosis, fibromyalgia pain
syndrome, severe osteoarthrosis both knees and both ankles, right wrist
recurrent ganglion cyst, guyon’s canal compression syndrome, and
osteoarthritis radioulnar joint.

10.  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.
11.  Title 38, United States Code, sections 1110 and 1131, permits the VA
to award compensation for a medical condition which was incurred in or
aggravated by active military service.  The VA, however, is not required by
law to determine medical unfitness for further military service.  The 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.

12.  The VA can evaluate a veteran throughout his lifetime, adjusting the
percentage of disability based upon that agency's examinations and
findings.  However, these changes do not call into question the application
of the fitness standards and the disability ratings assigned by proper
military medical authorities during the applicant’s processing through the
Army Physical Disability Evaluation System (PDES).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for a review of the PEB process completed in
his case, which in effect is a request for an increase of his disability
rating, and the supporting documents he submitted were carefully
considered.  However, there is an insufficient evidentiary basis to support
the requested relief.

2.  The evidence of record confirms the applicant was properly processed
through the PDES in accordance with the applicable laws and regulations,
and was medically retired based on two disabling conditions (Depressive
Disorder and Chronic Bilateral Ankle and Bilateral Knee pain).  His case
was properly considered by a PEB and his appeal was properly reviewed at a
formal PEB hearing at which his counsel was present.

3.  All the arguments and medical evidence provided by the applicant, with
the exception of the most recent medical statements completed in January
2005, were already considered and evaluated by both the PEB during its
original review, and during the appellate process, which included a formal
PEB hearing, which upheld the original PEB findings and recommendations.

4.  The PEB findings and recommendations, to include the assigned
disability rating, were based on a comprehensive medical evaluation of his
disabling medical conditions by competent medical authorities through the
PDES process. A subsequent change or worsening of those conditions would
not call into question the validity of the disability ratings that were
assigned during the PEB process, and there is absolutely no evidence
suggesting PEB findings and recommendations were arbitrary or capricious.
5.  Further, the existence of other service connected conditions that were
not considered disabling during the PEB process does not warrant changing
the disability rating assigned by the PEB, which was based solely on the
two disabling medical conditions evaluated.  The applicant is advised to
contact the VA regarding the assignment of disability ratings for service
connected conditions not evaluated by the PEB, and concerning long term
disability evaluation and treatment.  The VA can evaluate him throughout
his lifetime, adjusting the percentage of disability based upon how his
medical condition reduces or impairs his social or industrial adaptability.


6.  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 medical evidence that would call into question the original
decision of the PEB, or the affirmation of that decision by a formal PEB.
Therefore, there is an insufficient evidentiary basis to support granting
the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JNS__  __LGH__  ___MJF_  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.




            ____John N. Slone_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003354                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/14                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2004/03/30                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability, Permanent                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  177  |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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