RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 August 2006
      DOCKET NUMBER:  AR20060007882


      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:

|     |Ms. Jeanette R. McCants           |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 rating be increased.

2.  The applicant states he was placed on the Temporary Disability Retired
List (TDRL) with a 40 percent disability rating.  He was then permanently
retired with a 40 percent disability rating based on a finding that his
condition had stabilized.  However, that finding was premature and in
error. His asthma has stabilized; however, his diabetes has worsened, and
he is now insulin-dependent.

3.  The applicant provides a 9 May 2006 letter from his physician; his
original Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB)
proceedings; his TDRL orders; orders permanently retiring him; and his DD
Form 214 (Certificate of Release or Discharge from Active Duty) for the
period ending 1 December 2000.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 5 September 2002, the date he was removed from the TDRL.
The application submitted in this case is dated 19 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.  After having had prior service, the applicant entered active duty on 4
February 1995 as a Chaplain.

4.  On 15 June 2000, an MEB referred the applicant to a PEB for diagnoses
of (1) type II diabetes, well-controlled; (2) asthma; (3) hypertension; (4)
elevated cholesterol; and (5) a history of histoplasmosis exposure.  On 17
August 2000, the applicant agreed with the MEB’s findings and
recommendation.

5.  On 21 August 2000, an informal PEB found the applicant to be unfit due
to the diagnoses of asthma (rated at 30 percent disabling); and type II
diabetes, on oral hypoglycemic therapy (rated at 20 percent disabling), for
a combined rating of
40 percent.  Diagnoses 3, 4, and 5 were found to be not unfitting and were
not rated.  His condition was found to be insufficiently stable for final
adjudication and the informal PEB recommended he be placed on the TDRL.  On
22 August 2000, the applicant concurred with the findings of the informal
PEB and waived a formal hearing of his case.

6.  On 1 December 2000, the applicant was released from active duty and
placed on the TDRL the following day.

7.  The applicant underwent a TDRL evaluation on 21 June 2002.  The
evaluation noted that he had to increase his diabetes medication dosage;
otherwise, the evaluation noted that he continued “to have symptoms exactly
the same manner which he has had for the past almost three years now
without significant change one way or the other.”  His final diagnoses were
found to be (1) asthma which was mild, persistent, with symptoms greater
than two times a week but not daily; (2) Type II diabetes mellitus
requiring the use of daily oral hypoglycemics to maintain glucose control;
(3) hypertension; (4) hypertriglyceridemia; (5) history of histoplasmosis;
and (6) obstructive sleep apnea (a condition diagnosed in the past year),
stable on his CPAP (continuous positive airway pressure) device.

8.  On 7 August 2002, an informal PEB found the applicant to be unfit due
to the diagnoses of asthma, with normal spirometry on daily inhalational
anti-inflammatory therapy (rated at 30 percent disabling); and type II
diabetes, requiring oral hypoglycemic agent and restricted diet (rated at
20 percent disabling).  Diagnoses 3, 4, 5, and 6 were found to be not
unfitting and were not rated.  His condition was found to be sufficiently
stable for final adjudication and the informal PEB recommended he be
permanently retired with a combined rating of 40 percent.

9.  The applicant apparently initially nonconcurred with the contents of
the TDRL narrative summary.  His nonconcurrence was with one statement of
fact, which implied he had been diagnosed with asthma in 1990.  He stated
that he was, as the next paragraph in the TDRL narrative summary indicated,
diagnosed with asthma in 2000.  On 9 August 2002, he concurred with the
findings of the informal PEB and waived a formal hearing of his case.

10.  On 5 September 2002, the applicant was removed from the TDRL and
permanently retired the following day.

11.  The applicant provided a letter from his physician, dated 9 May 2006,
which indicated the physician added Lantus insulin to the applicant’s
current medications effective 14 April 2006.

12.  The Department of Veterans Affairs Schedule for Rating Disabilities
(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.
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.

13.  The VASRD gives code 7913 (diabetes mellitus) a 40 percent rating when
the condition requires insulin, restricted diet, and regulation of
activities.  A        20 percent rating is given when the condition
requires insulin and a restricted diet or a oral hypoglycemic agent and a
restricted diet.

14.  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 regulation defines “physically unfit” as
unfitness due to physical disability.  Army Regulation 635-40 also
prescribes the function of the TDRL.  The TDRL is used in the nature of a
“pending list.”  It provides a safeguard for the Government against
permanently retiring a Soldier who can later fully recover, or nearly
recover, from the disability causing him or her to be unfit.  Conversely,
the TDRL safeguards the Soldier from being permanently retired with a
condition that may reasonably be expected to develop into a more serious
permanent disability.

15.  Army Regulation 635-40 provides, in pertinent part, that an individual
may be placed in a TDRL status for a maximum period of 5 years when it is
determined that the individual is qualified for disability retirement under
Title 10, U.S. Code, section 1201, but for the fact that his or her
disability is not stable and the individual may recover and be fit for duty
or the degree of severity may increase or decrease so as to warrant a
change in the disability rating.

16.  Title 10, U. S. Code, section 1202 provides that if a member would be
qualified for retirement for disability but for the fact that his
disability is not determined to be of a permanent nature and stable, the
Secretary shall, if he also determines that accepted medical principles
indicate that the disability may be of a permanent nature, place the
member's name on the TDRL with retired pay computed under section 1401 of
this title.

17.  Title 10, U.S. Code, section 1210(h) provides that the disability pay
of a member whose name is on the TDRL terminates upon the expiration of 5
years after the date when his or her name was placed on that list.

18.  Title 38, U. S. Code, sections 1110 and 1131, permits the Department
of Veterans Affairs to award compensation for a medical condition which was
incurred in or aggravated by active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was placed on the TDRL in December 2000 for the unfitting
conditions of type II diabetes and asthma.  As his conditions were
determined to be unstable, he was placed on the TDRL.

2.  On 7 August 2002, an informal TDRL PEB found the applicant to be unfit
due to the diagnoses of type II diabetes (requiring oral hypoglycemic agent
and restricted diet) and asthma.  His condition was found to be
sufficiently stable at that time for final adjudication, and he was
permanently retired with a combined rating of 40 percent in September 2002.

3.  The maximum length of time the applicant could have remained on the
TDRL in any case would have been 5 years (to December 2005).  He provided
evidence to show he was placed on insulin in April 2006, more than 3 years
after he was removed from the TDRL and almost 6 months after the maximum
time he could have remained on the TDRL.

4.  It is acknowledged that the applicant’s type II diabetes may have
worsened since his removal from the TDRL; however, the Army’s rating was
dependent on the severity of his disability at the time he was removed from
that list.  The Department of Veterans Affairs has the responsibility and
jurisdiction to recognize any changes in that condition over time by
adjusting his disability rating.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 September 2002; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on     4 September 2005.  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

__jrm___  __swf___  __rch____  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.




                                  __Jeanette R. McCants_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007882                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060824                                |
|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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