RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 September 2006
      DOCKET NUMBER:  AR20060000773


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Jeffrey D. Redmann            |     |Member               |
|     |Mr. David W. Tucker               |     |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 that his disability separation with severance
pay be changed to a disability retirement.

2.  The applicant states he was told by the neurosurgeon that even with
surgery there was only a 50 percent probability that he would recover from
his injury, and it was doubtful he would ever recover from it.  He is now
permanently and totally disabled with a 100 percent rating.  He believes
the Army medical personnel knew that he would never recover from the injury
and that it was a degenerate progressive condition.

3.  The applicant provides his Department of Veterans Affairs (VA) medical
records and Rating Decisions; his Social Security Administration
adjudication; and his military medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 17 January 2000.  The application submitted in this case
is dated     9 January 2006.

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 limitations 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.  After having had prior service, the applicant enlisted in the Regular
Army on 22 August 1997.  He completed basic training and advanced
individual training and was awarded military occupational specialty 11M
(Fighting Vehicle Infantryman).

4.  A Medical Evaluation Board (MEB) narrative summary shows the applicant
was evaluated for a chief complaint of left leg pain and low back pain.  He
had onset of left leg pain and numbness after a heavy lifting incident in
June 1998.  He recovered with conservative management, but the sensations
spontaneously recurred in March 1999.  The left leg pain did not resolve
and the left leg became weak with persistent parasthesias and numbness.
The applicant reported that the pain to the left leg was not so severe
during the day, but it often woke him up at night.  Often the pain would
subside with repositioning.  The numbness and parasthesias were more
troublesome than the pain.  The Neurology Clinic advised him that surgery
was an option, but with surgery there was no more than a 50 percent
probability of him being able to return to full duty as an infantryman
without a profile.

5.  The applicant was diagnosed with left S1 neurologic deficit manifested
as weakness and numbness with mild associated radicular pain syndrome,
secondary to a left L5-S1 paracentral herniated disc.  On 19 October 1999,
the MEB referred the applicant to a Physical Evaluation Board (PEB).

6.  On 16 November 1999, an informal PEB found the applicant to be unfit,
under the VA Schedule for Rating Disabilities (VASRD) code 5295
(lumbosacral strain), due to back pain with left S1 neurologic deficit
manifested as weakness of left anterior tibialis and left extensor hallucis
longus; with hypesthesia in L5/S1 dermatone; and with straight leg raising
producing back pain but negative for leg pain.  The informal PEB
recommended the applicant be separated with severance pay with a 20 percent
disability rating.

7.  On 17 January 2000, the applicant was separated for physical
disability, in the rank of Specialist, E-4, with severance pay after
completing a total of 3 years,      2 months, and 4 days of creditable
active service.

8.  A VA Rating Decision dated 25 August 2000 shows the applicant’s service-
connected disability rating was increased to 60 percent.  The VA apparently
rated his condition under VASRD code 5293 (intervertebral disc syndrome).
The VA increased his rating in May 2003 to 100 percent due to
unemployability.

9.  In the processing of this case, an advisory opinion was obtained from
the      U. S. Army Physical Disability Agency.  That Agency noted that the
applicant could not be retired for disability, or placed on the Temporary
Disability Retired List (TDRL), unless he was rated at 30 percent or higher
of had 20 years of active duty service.  That Agency stated that the
applicant was properly rated at  20 percent and, even if his condition was
known to degenerate, he was not          authorized to be retired or placed
on the TDRL.  That Agency recommended that no change be made to the
applicant’s records.

10.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He rebutted that the recommendation in the advisory
opinion was unjust and wrong.  His neurologist proved that his condition
was going to get worse in the future, and it did, to the degree that today
he is 100 percent permanently and totally disabled for that condition.
During the MEB/PEB process, he did not get counseling from anyone in regard
to the proceedings.  The various clerks just told him to sign here and
there, without giving him any explanations.  He should have been placed on
the TDRL to get treatment and to see if he was going to get better.  They
just got rid of him without any benefits with no follow up for his medical
condition and no treatment.

11.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.


12.  Army Regulation 635-40 states that a Soldier's name may be placed on
the TDRL when it is determined that the Soldier is qualified for disability
retirement but for the fact that his or her disability is determined not to
be of a permanent nature and stable.  When a Soldier's correct rating is
less than 30 percent, a rating will not be increased to 30 percent solely
for the purpose of making the Soldier eligible for the TDRL.

13.  The VASRD is the standard under which percentage rating decisions are
to be made for disabled military personnel.  The VASRD is primarily used as
a guide for evaluating disabilities resulting from all types of diseases
and injuries encountered as a result of, or incident to, military service.
Unlike the VA, the Army must first determine whether or not a Soldier is
fit to reasonably perform the duties of his office, grade, rank or rating.
Once a Soldier is determined to be physically unfit for further military
service, percentage ratings are applied to the unfitting conditions from
the VASRD.  These percentages are applied based on the severity of the
condition.

14.  The VASRD gives code 5293 (intervertebral disc syndrome) a 60 percent
rating when it is pronounced, with persistent symptoms compatible with
sciatic neuropathy with characteristic pain and demonstrable muscle spasm
or other neurological findings appropriate to the site of the diseased
disc; a 40 percent rating when it is severe with recurring attacks and
intermittent relief; and a         20 percent rating when it is moderate
with recurring attacks.

15.  The VASRD gives code 5295 (lumbosacral strain) a 40 percent rating
when it is severe, with listing of the whole spine to the opposite side,
positive Goldthwaite’s sign, marked limitation of forward bending in
standing position,  loss of lateral motion with osteo-arthritic changes, or
narrowing or irregularity of joint space, or some of the above with
abnormal mobility on forced motion; a     20 percent rating with muscle
spasm on extreme forward bending, loss of lateral spine motion unilateral,
in standing position; and a 10 percent rating with characteristic pain on
motion.
16.  Title 10, United States Code, section 1203, provides for the physical
disability separation of a member who has less than 20 years service and a
disability rated at less than 30 percent.

17.  Title 38, United States Code, sections 310 and 331, permits the VA to
award compensation for a medical condition which was incurred in or
aggravated by active military service.

18.  Until certain provisions of the law were changed in fiscal year 2004,
a common misconception was that veterans could receive both a military
retirement for physical unfitness and a VA disability pension.  Under the
law prior to 2004, a veteran could only be compensated once for a
disability.  If a veteran was receiving a VA disability pension and the
Board corrected the records to show the veteran was retired for physical
unfitness, the veteran would have had to have chosen between the VA pension
and military retirement.  The new law does not apply to disability retirees
with less than 20 years of service.

19.  Army Regulation 600-8-14 (Identification Cards, Tags, and Badges)
states that honorably discharged veterans who are rated as 100 percent
disabled from a service-connected injury or disease are entitled to a
military identification card and commissary, exchange, and MWR (morale,
welfare, and recreation) benefits. Medical benefits are received through
the VA.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged the applicant was told that even with surgery there
was only a 50 percent probability that he would recover from his injury.
It is acknowledged that Army medical personnel most likely knew he would
never recover from his injury and that his condition was degenerative and
progressive.

2.  Nevertheless, it appears that the applicant was properly separated with
severance pay with a 20 percent disability rating.

3.  The MEB narrative summary indicated the applicant reported that the
pain to his left leg was not so severe during the day, but it often woke
him up at night. Often the pain would subside with repositioning.  The
numbness and parasthesias were more troublesome than the pain.  The
description of his pain/condition at the time did not appear to meet the
criteria for award of a        40 percent disability rating under either
VASRD code 5293 (severe with recurring attacks and intermittent relief) or
VASRD code 5295 (again, “severe”).  (A         30 percent disability rating
is not an option with either VASRD code).


4.  The applicant could not have been placed on the TDRL because he did not
meet the criteria for a medical retirement.  Even so, the Army did not just
get “rid of him without any benefits with no follow up for his medical
condition and no treatment.”

5.  It is acknowledged that the applicant’s condition may have worsened
since his separation; however, the Army’s rating was dependent on the
severity of his condition at the time of his separation.  However, once
separated with a service-connected disability it becomes the responsibility
of the VA to provide follow-up treatment, as the VA has done in his case.
The VA then has the responsibility and jurisdiction to recognize any
changes in that condition over time by adjusting his disability rating, as
the VA has also done in his case.

6.  The applicant may be under the misconception that, had he been retired
by the Army for physical disability, he could have drawn both Army retired
pay and a VA disability pension.  That would not have been so.  The
applicant would have been required to waive receipt of Army retired pay if
he had wished to draw a VA disability pension.  In addition, since his VA
disability rating is 100 percent, he is still entitled to a military
identification card and benefits (minus medical benefits, which are
received through the VA).

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 January 2000; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on          16 January 2003.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wfc___  __jcr___  __dwt___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would 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.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  __William f. Crain____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000773                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060921                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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