RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060009512 


	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 increased to 30 percent or more and that he be permanently retired.

2.  The applicant states he was discharged after one year on the Temporary Disability Retired List (TDRL).  He believes he should have been retired due to disability.  He states he received a 60 percent disability rating from the Department of Veterans Affairs (DVA) one year after his discharge.  He still has the 60 percent disability rating for the same problem.  He states that he has only been able to work after 10 years with an advanced degree and many accommodations.  

3.  The applicant provides no additional documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 5 November 1993, the date he was removed from the TDRL.  The application submitted in this case is dated 22 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 the Regular Army on 15 November 1989 for a period of four years.  He completed basic training and advanced individual training at Fort Bliss, Texas.  He was awarded military occupational specialty (MOS) 24C (Hawk Firing Section Mechanic).  He was promoted to specialist four on 1 February 1991.

4.  A Medical Evaluation Board (MEB) evaluated the applicant on 20 May 1992 and he was diagnosed as having chronic active hepatitis secondary to chronic hepatitis C virus.  He was referred to a Physical Evaluation Board (PEB).



5.  An informal PEB convened on 15 June 1992.  The PEB proceedings described the applicant’s condition as chronic active hepatitis secondary to chronic hepatitis C virus manifested by fatigue and chronically elevated transaminases under Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 7399 and 7345.  The PEB proceedings indicated that the applicant‘s lab data showed positive for hepatitis C.  The applicant was described as unfit for military service and could not fulfill the requirements of his MOS.  Based on a review of the objective medical evidence of record, the PEB found that the applicant’s medical and physical impairment prevented reasonable performance of duties required by his grade and military specialty.  The PEB found the applicant physically unfit for military service and recommended a combined rating of 30 percent.  The PEB recommended that he be placed on the TDRL with reexamination during 1 July 1993.  

6.  The applicant was released from active duty on 30 July 1992 based on physical disability and he was placed on the TDRL on the following date.  He completed 2 years, 8 months, and 16 days of active military service.

7.  A Narrative Summary, dated 5 August 1993, described the applicant’s current status as “Duty and life style appears significantly restricted due to chronic fatigue syndrome known to occur with chronic hepatitis C for which the prognosis is unknown especially in light of the paucity of information available about the patient’s post therapy liver biopsy.”

8.  The applicant was reevaluated by a TDRL informal PEB on 2 September 1993.  The PEB proceedings described the applicant’s medical condition as a history of mild chronic hepatitis C with bridging port fibrosis based on a 1992 biopsy.  The PEB determined that the applicant had made some improvement while on the TDRL; however, he was physically unfit to perform the duties required of his grade and MOS.  The PEB proceedings indicated that the applicant’s current condition was considered sufficiently stable for final adjudication.  The PEB recommended the applicant be separated with severance pay with a combined rating of 10 percent.  

9.  The applicant’s personnel records contain a Conversation Record, dated 15 September 1993, which indicates he disagreed with the informal PEB recommendation, dated 2 September 1993.  This document indicates the applicant demanded a formal PEB without personal appearance and to have counsel represent him.  

10.  The applicant was reevaluated by a TDRL formal PEB on 27 September 1993.  During formal proceedings, the PEB reevaluated all available medical records and statements by counsel in the applicant’s behalf.  Based on this review, the PEB considered the applicant most appropriately rated.  The formal PEB recommended the applicant be separated with severance pay with a combined rating of 10 percent.

11.  On 1 October 1993, the applicant acknowledged that he had been advised of the findings and recommendations of the formal PEB.  He indicated he did not concur with the formal PEB findings and elected to submit a statement of rebuttal.

12.  He identified the word “Improvement” as noted in the narrative and PEB proceedings.  He indicated that the nature of hepatitis C was that physical activity aggravated chronic fatigue and intolerance to stress and inactivity reduced the symptoms.  At the time of his evaluation, he had been out of work for 11 months and out of school for 2 months.  He was able to sleep as needed and he had no physical activity to aggravate his illness.  He also indicated that he suffered from symptoms less than a year ago while serving on active duty and performing the duties of his post which included change of quarters (CQ) duty on a regular basis.  

13.  He identified the word “Improvement” again as noted in the PEB proceedings based on a diagnosis of his biopsy performed on 7 (sic) October 1992.  He indicated that the change from “chronic active hepatitis” to “mild chronic hepatitis” based on changes in biopsy specimens could only have three explanations.  He stated that the origin of specimens from different points in same organ can show varying degrees of damage; a patient may be in a 25 percent category that shows some improvement while on Interferon, but return to normal progression after treatment; or a patient seen during remission when relapses and progression may be anticipated.  The applicant further identified the PEB rating of 10 percent as being not justified. 

14.  Department of the Army, U.S. Total Army Personnel Command Orders D212-19, dated 5 November 1993, removed the applicant from the TDRL and discharged him from the service on 5 November 1993 because of permanent physical disability.  

15.  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.  



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.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

17.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

18.  Title 38, United States Code, sections 310 and 331, permits 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.  

19.  VASRD Code 7345, Hepatitis, Infectious gives a percentage rating of 30 percent when there is minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency but necessitating dietary restriction or other therapeutic measures.  A percentage rating of 10 percent is given when there is as demonstrable liver damage with mild gastrointestinal disturbance.

DISCUSSION AND CONCLUSIONS:

1.  In July 1992, an informal PEB found the applicant unfit for military service for chronic hepatitis C, VARSD Code 7345.  Becaue it was determined that the applicant's physical disability was temporary, he was released from active duty on 30 July 1992 and placed on the TDRL at a 30 percent disability rating.

2.  The applicant states that he received a 60 percent disability rating from the VA.  However, the rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating.  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.  

3.  There is insufficient evidence to show the applicant’s disability was improperly rated by the TDRL PEB or that his separation with severance pay was not in compliance with law and regulation.  VASRD code 7345 requires dietary restriction or other therapeutic measures to qualify for a 30 percent rating.  There is no available evidence to show the applicant was on a dietary restriction or other therapeutic measures at the time he was reevaluated in September 1993.  Therefore, there is insufficient evidence on which to based an increase in his disability rating.  
4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 5 November 1993; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 4 November 1996.  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
AR20060009512
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070206
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
108.0200
2.

3.

4.

5.

6.