RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2007
	DOCKET NUMBER:  AR20060006771 


	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.


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	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, that his disability rating be changed to a minimum of 30%.

2.  The applicant states, in effect, that he was unjustly discharged from the Temporary Disability Retired List (TDRL) with a 20% disability rating and entitlement to severance pay.  He goes on to state that the military would not acknowledge any medical conditions other than Hodgkins Disease, when he suffers from over 25 medical conditions, including Post Traumatic Stress Disorder (PTSD) and other conditions the Army and the Department of Veterans Affairs (VA) acknowledged on and off TDRL status.  He further states that he currently takes 17 different medications, that he has many medical and psychological issues he has been dealing with, and that he never concurred with the findings.  Additionally, he has been awarded a 100% disability rating by the VA for his disabilities.  

3.  The applicant provides a three-page letter explaining his application, a letter authorizing his congressional representatives to access his records and intervene on his behalf, and various medicals evaluations and summaries.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 8 June 1998, the date he was discharged by reason of physical disability.  The application submitted in this case was received on 4 May 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.  The applicant enlisted in Minneapolis, Minnesota, on 27 December 1988 for a period of 4 years, training in the Infantry Career Management Field (CMF) and assignment to Europe.  He completed his one-station unit training at Fort Benning, Georgia and was transferred to Garlstedt,Germany on 1 May 1989 and was assigned as a fighting vehicle infantryman.  He was advanced to the pay grade of E-4 on 7 January 1991.  
4.  On 7 January 1991, he deployed to Saudi Arabia with his unit and in February 1991, he sustained shrapnel injuries to his back and left posterior shoulder area with chronic residual pain.      

5.  During the course of treatment of his injuries, he was diagnosed as having Hodgkin’s Disease in November 1991 and was transferred to Landstuhl Army Hospital.  He was subsequently transferred to Walter Reed Army Medical Center (WRAMC), Washington, D.C.
   
6.  The applicant underwent a Medical Evaluation Board (MEB) on 3 February 1992 and the MEB recommended that he be referred to a Physical Evaluation Board (PEB).  The findings and recommendation of the MEB were approved by the approval authority on 28 February 1992 and the applicant concurred with the recommendation.  The case was forwarded to the PEB on 9 March 1992.  

7.  On 27 March 1992, a PEB was convened at WRAMC and evaluated the applicant for Stage 1-A Hodgkin’s Disease.  The PEB found that his medical condition prevented satisfactory performance of duty in his grade and primary military occupational specialty (MOS) and recommended that he be placed on the TDRL with a 30% disability rating and that he receive 50% of his retired base pay until removal from the TDRL.  He was also informed that he would be required to undergo medical reexaminations and that failure to do so would result in a suspension of retired pay.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

8.  Accordingly, he was placed on the TDRL effective 12 May 1992.  He had served 3 years, 4 months, and 15 days of total active service and was awarded the Good Conduct Medal, the National Defense Service Medal, the Overseas Service Ribbon, the Southwest Asia Service Medal with one bronze service star, the Kuwait Liberation Medal, the Combat Infantryman Badge, the Purple Heart, and the Army Commendation Medal with one oak leaf cluster.

9.  It appears that the applicant was scheduled for periodic medical examinations in April 1997, June 1997, September 1997, October 1997, January 1998, February 1998, and March 1998, which he failed to show for his re-examinations. However, the records do show that he was scheduled for evaluation on 5 December 1997 by General Medicine, EKG, Chest X-ray, Neurology and Physchiatry.

10.  On 5 May 1998, a PEB was convened at Fort Sam Houston, Texas, which determined, based on the 5 December 1997 evaluation, that the applicant remained unfit to reasonably perform his duties required by his previous grade and MOS and that his current condition (Hodgkin’s Disease) was sufficiently stable for final adjudication.  The PEB recommended that the applicant be discharged with severance pay if otherwise eligible.

11.  The findings and recommendations of the PEB were forwarded to the applicant for an election by the applicant.  The proceedings were delivered by Federal Express on 11 May 1998.  The applicant eventually submitted an appeal of the findings and proceedings.  After the appeal was considered and a determination was made that the original findings and recommendations were confirmed, the appropriate authority approved the PEB proceedings on 3 June 1988. 

12.  On 8 June 1998, orders were published by the Chief, Physical Disability Branch, Total Army Personnel Command, which discharged the applicant because of physical disability, with a 20% disability rating.

13.  In the processing of this case a staff advisory opinion was obtained from the United States Army Physical Disability Agency (USAPDA) which opines that the applicant was placed on the TDRL in May 1992 for residuals of Hodgkin’s Disease.  The disease was reported to be stable and not an active cancer at that time and was the only unfitting condition ratable in 1992.  He was retained in 1993 because he had no significant changes and in 1998, he was still cancer free, with residuals of nerve damage with some resulting pain and tingling, which were appropriately rated at 20%.  Officials at the USAPDA further opine that the applicant’s later diagnosed conditions, which include PTSD and anxiety disorder were not compensable because they were not unfitting while he was entitled to basic pay.  Officials at the USAPDA further opine that the PEB’s findings and recommendations are administratively correct and reflect no errors or injustices that would require any change to the applicant’s records.

14.  The advisory opinion was provided to the applicant for comment and he responded to the effect, that he will accept nothing less than a 30% disability rating and that he will seek legal representation if necessary to ensure justice is served if the Army does not do the right thing.  He goes on to state that he never concurred with the final PEB findings and recommendations and the fact that his case was not finalized within the prescribed 5 years, he should have been medically retired with at least a 30% disability rating.

15.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is 
necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating.  

16.  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.  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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.            

17.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.  Transfer to the TDRL results in the individual receiving Retired Pay.

18.  There is a difference between the Department of Veterans Affairs (VA) and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities (VASRD) and his separation with severance pay was in compliance with laws and regulations in effect at the time.

2.  While the applicant was found unfit for duty due to Hodgkin’s Disease and was assigned a disability rating of 20% for that unfitting condition, at the time of 
his PEB hearing it was determined that his diagnosis for PTSD and other related conditions was not of such severity to render him unfit for duty or to assign a disability rating.

3.  Department of the Army disability decisions are based on observations and determinations existing at the time of the PEB hearing.  The Department of the Army ratings become effective the date that permanency of the diagnosis is established.

4.  The applicant has not provided sufficient evidence to support his contention that he was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB was incorrect. 
 
5.  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 submit evidence that would satisfy this requirement.
 
6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 8 June 1998; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 7 June 2001.  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

___x  __  _x  ___  ___x __  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.




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          CHAIRPERSON




INDEX

CASE ID
AR20060006771
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070306
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         1.108.0200
179/% of Disability
2.

3.

4.

5.

6.