RECORD OF PROCEEDINGS
                                        

	IN THE CASE OF:	  


	BOARD DATE:	  28 June 2007
	DOCKET NUMBER:  AR20070000268 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst


The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. William F. Crain

Member

Mr. Dean A. Camarella

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 correction of his military records to show that he was retired due to a physical disability.  He also requests consideration for promotion to sergeant first class, pay grade E7.

2.  The applicant states, in effect, that he should have been awarded twenty percent disability for degenerative arthritis; fifty percent disability for sleep apnea; and forty percent disability for fibromyalgia.   

3.  The applicant provides copies of his Physical Evaluation Board (PEB) proceedings dated March 2002 and June 2005; discharge orders; Congressional Inquiry with the United States Army Physical Disability Agency (USAPDA) response; applicant’s memorandum for record dated 8 July 2005; applicant's rebuttal memorandum dated 9 August 2005; permanent physical profiles dated 22 August 2001 and 18 September 2001; Information Paper dated 28 February 2005; Temporary Disability Retired List (TDRL) Evaluation dated 28 January 2005; Department of Defense Instruction Number 1332.38 with applicant’s comments; documentation of medical treatment and testing; excerpts of Army Regulations 40-501 and 635-40; Physical Evaluation for Retention, Retirement, or Separation, dated 8 February 2006; and Military Personnel Message 05-084, dated 4 April 2005. 

CONSIDERATION OF EVIDENCE:

1.  On 13 October 1983, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 92Y1O (Supply Specialist).  He served through a series of enlistments and attained the rank of staff sergeant, pay grade E-6 on 1 February 1996.

2.  On 14 March 2002, a PEB convened to consider the applicant’s medical condition.  It found that he suffered from fibromyalgia, rated at twenty percent; from degenerative joint disease, rated at ten percent; and from obstructive sleep apnea, rated at zero percent.  The PEB found the applicant to be physically unfit and recommended a combined disability rating of thirty percent, and that he be placed on the TDRL with reexamination during October 2003.   

3.  There is no available evidence to show that the applicant was reexamined in 2003 or 2004.

4.  On 24 June 2005, a PEB convened to consider the applicant’s medical condition.  It found that he still suffered from fibromyalgia requiring continuous medication for control but was working.  The PEB found no change in the applicant’s condition with regard to the degenerative joint disease or sleep apnea; therefore, these disability ratings remained unchanged at ten and zero percent, respectively.  The PEB found the applicant to be physically unfit and recommended a combined disability rating of twenty percent, and that he be discharged with severance pay.

5.  On 8 July 2005, the applicant submitted a memorandum to the PEB notifying them of his disagreement with their decision.  He contended that his medical packet was incomplete; that his condition had worsened; and that he should have been rated at fifty percent for his sleep apnea based on his usage of a continuous positive airway pressure machine while sleeping.  He asked the PEB to reconsider its findings and recommendations, and if the PEB maintained a zero disability rating for his sleep apnea, then he desired a formal hearing.

6.  Orders D201-08, USAPDA, dated 20 July 2005, directed the applicant to be discharged effective that same day, with a twenty percent disability with entitlement to severance pay if otherwise qualified.

7.  On 9 August 2005, the applicant again submitted a memorandum to the PEB requesting that his separation action be stopped and that he be permitted time to provide additional information on his medical condition.

8.   On 13 December 2005, the Deputy Commander, USAPDA, responded to a Congressional inquiry on behalf of the applicant.   He, in effect, stated that the applicant was originally placed on the TDRL in 2002 with a thirty percent disability rating.  In 2005, the PEB reexamined the applicant and reduced the rating of his disability to twenty percent and recommended that he be separated with severance pay.  The applicant was informed of this decision and given 
10 days to submit his election.  The applicant acknowledged receipt on 6 July 2005 but failed to submit his election within the prescribed time limit.  On 20 July 2005, the case was forwarded to the USAPDA for further processing.   On 
10 August 2005, the PEB received the applicant’s additional documentation which included his doctor’s addendum dated 8 July 2005, along with the multiple old sleep studies concerning his sleep apnea.  The PEB reviewed this documentation, along with his entire case file and determined that had the PEB been in receipt of this information at the time his case was adjudicated, the findings would have been the same.  The PEB forwarded this documentation to the USAPDA on 11 August 2005 for review by the USAPDA.  The Deputy Commander said that they also reviewed the documentation and determined that it did not justify a change in the rating, and that the findings and recommendations of the PEB were just and in conformance with the provisions of law and current regulations.  On 18 August 2005, the applicant was notified in writing that the USAPDA upheld the PEB’s decision.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence clearly shows that the applicant was medically disabled and evaluated by a PEB.  He initially received a thirty percent disability rating and placed on the TDRL.  Upon subsequent reexamination, the PEB determined that his medical condition had improved but that he was still unfit for duty.  Therefore, he was discharged with severance pay.

2.  The applicant contended that the PEB did not receive all of his medical documentation and therefore rendered an incorrect rating decision.  The evidence supports his contention that some of his medical documentation had not been reviewed by the PEB.  However, it was subsequently provided and was reviewed by both the PEB and the USAPDA.   The determination was that the additional documentation did not justify any change to the original board findings and recommendations.  

3.  There is no available evidence to show that the applicant was denied the opportunity to prepare his promotion package for consideration by the sergeant first class promotion board.  Therefore, the applicant’s request for promotion consideration at this time should not be granted.

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JTM___  __DAC__  __WFC   DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.





_____ John T. Meixell ______
          CHAIRPERSON




INDEX

CASE ID
AR20070000268
SUFFIX

RECON
 
DATE BOARDED
20070628 
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.0000
2.
131.0000
3.

4.

5.

6.