RECORD OF PROCEEDINGS


	IN THE CASE OF:	.


	BOARD DATE:	  10 April 2007 
	DOCKET NUMBER:  AR20060009835 


	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. Gerard W. Schwartz

Acting Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Ernestine L. Fields

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, correction of his records to have his rank reinstated to specialist/pay grade E-4 and his disability rating upgraded based on his head injury and current disabilities.  

2.  The applicant states, in effect, that he was hospitalized and had just come out of a coma when his commander had him sign an accident report.

3.  The applicant provides DA Form 4700 (Medical Record-Supplemental Medical Data), dated 11 November 1993; Standard Form 506 (Clinical Record), dated 15 November 1993; DA Form 4187 (Personnel Action), dated 10 November 1992; applicant's official statement, dated 31 August 1993; DA Form 2627, (Record of Proceedings Under Article 15, UCMJ), dated 27 August 1993; accident report, dated 7 October 1993; Medical Board Proceedings(MEB), dated 23 March 1994; Temporary Disability Retirement Orders, dated 25 July 1994; Physical Evaluation Board (PEB) proceedings with corrections, dated 21 July 1995; and Department of Veteran Affairs (DVA) Rating Decision, dated 27 January 2003, in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 15 August 1994, the date of his release from active duty.  The application submitted in this case is dated 4 July 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 11 September 1990.  He completed basic training and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).  The applicant's record shows that he was promoted to the rank of specialist/pay grade E-4 on 11 December 1992.




4.  The record reveals a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 27 August 1993, for wrongfully failing to register his Sig Sauer, 9mm pistol on 12 August 1993.  The applicant's punishment consisted of reduction to the rank of private first class/pay grade E-3. 

5.  On 4 October 1993, the applicant was involved in a vehicular accident during training exercises at Yakima Proving Ground, Yakima, Washington.  The applicant received a closed head injury, a right foot fracture, and a right elbow injury.  The applicant was unconscious and was admitted to a civilian hospital in Yakima, Washington.  Once the applicant was stable, he was transferred and admitted to the Madigan Army Medical Center (MAMC), Tacoma, Washington.

6.  On 20 December 1993, a Neuropsychological Evaluation Report was initiated to describe, summarize, and provided recommendations about the applicant's current cognitive and emotional functioning, within the context of the head injury he sustained on 1 October 1993.  

7.  The Neuropsychological Evaluation Summary shows that the applicant was referred to the Clinical Neurophysiologist at MAMC for treatment of his mood disorder, for medical separation from the Army, brain injury, vocational rehabilitation at the Veterans Administration Medical Center (VAMC), Palo Alto, California, continued marital and family counseling, clinical psychology services at MAMC, and financial counseling.

8.  On 23 March 1994, the MEB shows that the applicant was diagnosed with having post-traumatic encephalopathy, moderately severe, related to his vehicular accident on 1 October 1993, as manifested by deficits in emotional liability, memory, and language-relate skills.  The second diagnosis shows the applicant had a radial head fracture, right, healed, with mild reduction in strength of the right arm and decreased range of motion of the right elbow, improved.  The third diagnosis shows the applicant fractured a navicular bone, right foot, healed, without apparent residual pain, restriction of motion, or other limitation.  

9.  The MEB recommendation shows that the applicant was unable to carry out the usual duties expected of an active duty Soldier in MOS 12b, and therefore, should receive outpatient central nervous system rehabilitation and evaluation at the VAMC, Pal Alto, California.  The recommendation also stated that the applicant would be reevaluated in one year which would include a repeat neuropsychological evaluation to further assess the permanency of his deficits and final fitness for active military duty.  The MEB referred the applicant's case to a PEB for evaluation.  The applicant signed the MEB Proceedings and agreed with its findings and recommendation.
10.  On 18 April 1994, the applicant's case was evaluated by the PEB, and was assigned a rating of 40 percent and placed on the Temporary Disability Retired List (TDRL).  

11.  On 2 June 1994, the applicant's case was reevaluated by a PEB convened at Walter Reed Medical Center, Washington, DC.  The PEB found that the applicant was physically unfit based on his diagnosed condition of dementia associated with closed head injury with diffuse subarachnoid bleeding related to the vehicular accident on 1 October 1993, manifested by deficits in liability of emotions, reduced memory and language related skills.  The PEB found that the applicant's condition had improved but his immediate condition was considered not yet stable.  

12.  The applicant's was also diagnosed with a second condition for a fracture of radial head, right, healed, with residual, reduced rang of motion of 70 degrees extension and muscular weakness, not yet stable or fully rehabilitated.  The PEB found that the functional limitations in maintaining the appropriate level of adaptability caused by the physical impairments make the applicant unfit to perform the duties required of an E-3 in his MOS.  

13.  U.S. Total Army Personnel Command Orders Number D141-20, dated 25 July 1994, released the applicant from assignment and duty due to a physical disability on 15 August 1994.  These orders also placed the applicant on the TDRL in the rank of private first class/pay grade E-3, effective 16 August 1994 with a 40 percent disability.

14.  The applicant’s DD Form 214 shows he was released from active duty on 15 August 1994 and placed on the TDRL in the rank of private first class/pay grade (E-3).  

15.  The applicant's available Leave and Earning Statement (LES) from the Defense Finance and Accounting Service shows specific changes made to his military records.  The applicant's LES, for the period covering 1 March 1994 through 31 March 1994, shows he was paid as a private first class/pay grade 
E-3.  

16.  The applicant submitted a Neuropsychological Assessment Report and TDRL examination from the Naval Medical Center, San Diego, California, dated 24 March 1995.  The Neuropsychological Assessment summary and recommendations show that two years after the applicant's accident he is capable of performing within normal limits on most tasks associated with higher corticle functioning.  


17.  The report shows the applicant has residual verbal learning/memory impairment, spelling dyspraxia remain problems, speed of thought appeared to be mildly slowed and effortful, level of observed impairments are considered mild to moderate and is not considered neuropsychologically fit for return to full duty.  

18.  The report continues that significant spontaneous recovery is not anticipated and continuation of TDRL status is not recommended.  Additionally, the report shows the applicant's is experiencing martial problems and recommends that the family receive counseling which includes education about the neuropsychological sequelae of head injuries.  

19.  The applicant was reevaluated by a TDRL informal PEB on 23 March 1995. The TDRL examination shows the applicant's diagnosis for post-traumatic encephalopathy had improved significantly since his vehicular accident on 1 October 1993. 

20.  On 3 April 1995, that applicant received a TDRL examination at the Naval Medical Center, San Diego, California.  The TDRL examination shows the applicant's original diagnosis is now described as a fractured right radial head injury healed with malunion and progressive degenerated changes of the radiohumeral joint and a fractured navicular bone, healed, without limitations.  The TDRL examination shows that it was suggested that the applicant receive surgery to resect his fractured right, radial head if his symptoms of pain and limitation of elbow function continues.  The TDRL examination shows that a personal appearance before the PEB would not be harmful to his physical or mental health. 

21.  On 18 May 1995, the applicant received a second TDRL examination at the Naval Medical Center, San Diego, California.  The TDRL examination shows the applicant was not employed, complained of irritability, memory dysfunction, headache, difficulties with speech, and right arm pain.  The TDRL examination also showed he was generally in good health.  

22.  On 29 June 1995, the applicant's neuropsychological testing demonstrated improvement in function.  The applicant's present or psychological evaluation suggests he was capable of performing within normal limits on almost all tasks associated with higher cortical function; however, he had some residual difficulty with verbal learning and memory, as well as spelling and his thought process somewhat slow.  The evaluation also shows a personal appearance before a PEB would not affect this patient's mental health.  




23.  On 11 July 1995, the U.S. Army Medical Department Activity (MEDDAC), Fort Irwin, California, shows the applicant received two TDRL examinations and a Neuropsychological Assessment Report.  The Deputy Commander for Clinical Services after reviewing the applicant's case forwarded his recommendation to the President, U.S. Army PEB, Madigan Army Medical Center, Tacoma, Washington, to place the applicant in a permanent retired status.

24.  The applicant was reevaluated by a TDRL informal PEB on 21 July 1995.  The PEB proceedings described the applicant’s medical conditions.  The applicant's first condition was listed under VA Code 9304, for Dementia associated with closed head injury with diffuse subarachnoid bleeding, with mild to moderate continuing impairment particular in new verbal learning.  

25.  The applicant's second condition was listed under VA Code 5212 vice 5207, for status post fracture of radial head with malunion causing impingement, crepitation and osteophyte formation in elbow, with range of motion of 10 to 120 degrees (ROM no longer stable) as outlined in the TDRL Orthopedic reevaluation, dated 3 April 1995.  

26.  The PEB determined that the applicant's condition had not improved to the extent that he was fit for duty and recommended he receive a combined disability rating of 20 percent.  On 28 July 1995, the applicant did not concur with the findings of the PEB and requested a formal hearing.

27.  On 14 September 1995, the PEB formal hearing found the applicant was physically unfit and recommended his combined rating be upgraded to show 40 percent and to receive a permanent disability retirement.

28.  U.S. Total Army Personnel Command Orders Number D183-10, dated 25 September 1995, released the applicant from the TDRL due to permanent physical disability and permanently retired him effective 25 September 1995 with a 40 percent disability rating.  The applicant was placed on the Permanent Disability Retired List in the rank of private first class/pay grade of E-3.

29.  On 27 January 2003, the Department of Veterans Affairs, Oakland Regional Officer, Oakland, California informed the applicant that his service connected compensation for bipolar disorder with personality changes due to head trauma, would be continued at 100 percent due to his service connected disability which renders him unable to work.  The evaluation also showed that the applicant service connected compensation for fracture, right radius currently evaluated as 10 percent, would be continued due to the records received from the Monterey VA Outpatient Clinic.


30.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1, 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 reasonably may be expected to perform because of his or her office, rank, grade or rating.

31.  Army Regulation 40-501 (Standards of Medical Fitness) governs the medical fitness standards for retention and separation, including retirement.  Paragraph 1-6 states that medical fitness standards cannot be waived by medical examiners or by the examinee.  Examinees initially reported as medically unacceptable by reason of medical unfitness when the medical fitness in chapter 2, 3, 4, or 5 apply, may request a waiver of the medical fitness standards in accordance with the basic administrative directive governing the personnel action.

32.  Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment. 

33.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.



34.  Title 38, United States Code, 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.  

35.  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.

36.  Paragraph 4-19 of Army Regulation 635-40 states, in part, that the first and most important determination made by the PEB is whether the Soldier is physically fit or unfit to perform the duties of the Soldier’s grade or rank.  All other actions are directly or indirectly tied to this one finding.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his disability rating should be upgraded based on his head injury and current disabilities and his rank should be reinstated to specialist/pay grade E-4.  

2.  Records show the applicant was advanced to the rank of specialist/pay grade E-4 on 11 December 1992.  However, disciplinary action was taken against him on 27 August 1993, which reduced his rank to private first class/pay grade E-3.  

3.  Records show he held the rank of private first class at the time of his release from active duty on 15 August 1994.  

4.  Records show that on 25 September 1995, he was approved for release from the TDRL with a rating of 40 percent in the rank of private first class.  

5.  There is no evidence in the available service records and the applicant has not provided sufficient evidence which shows his grade at the time of his release from active duty or his release from the TDRL was in the grade of specialist pay grade E-4.  Therefore, without substantiating evidence to the contrary, there is no basis to grant the applicant's request to change his records to show his rank as specialist/pay grade E-4.

6.  The applicant contends his record should be corrected by increasing his disability rating based on his head injury and also his current conditions.

7.  The evidence shows the applicant concurred with the findings and recommendations of the PEB and that he did not pursue the appellate process.  The evidence of record confirms the applicant was properly processed through the Physical Disability Evaluation System in accordance with the applicable laws and regulations.

8.  An award of a higher DVA rating does not establish error or injustice in an Army disability rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The DVA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.

9.  Furthermore, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

10.  Based on the foregoing, there is no basis for changing the applicant's disability rating by the Army in this case.  As provided for in law, the DVA has rated the applicant 100 percent service disabled due to a service connected disability, and is appropriately compensating the applicant based on this rating. The DVA may reevaluate the applicant, if necessary, as his condition changes.

11.  In order to justify correction of a military record the applicant must show, 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.

12.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 August 1994; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 August 1997.  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

_KLW___  _LMD____  _EIF____  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.



__Kenneth L. Wright__
          CHAIRPERSON




INDEX

CASE ID
AR20060009835
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
TDRL/PDRL
DATE OF DISCHARGE
1994/08/15
DISCHARGE AUTHORITY
AR 635-200 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.