RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 December 2007
	DOCKET NUMBER:  AR20070000893 


	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

Ms. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Michael J. Flynn

Member

Ms. Sherry J. Stone

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 records to show that he was permanently retired from the military by reason of physical disability.

2.  The applicant states that he should have been permanently retired from the military.

3.  The applicant provides in support of his application a copy of Department of Veterans Affairs (DVA) Rating Decision dated 25 September 2003; a self-authored letter dated 26 December 2006, addressed to "Whom It May Concern", describing the events that led to his injuries; a copy of an article from Time Magazine dated 12 April 1982, entitled Killer Wind in the Mojave; a Hospital Clinical Record Narrative Summary dated 8 April 1982; a Hospital Medical Record Operation Report dated 19 April 1983; a Medical Record Consultation Sheet dated 2 December 1986; an Inpatient Treatment Record Cover Sheet; notification from the Chief, Medical Clinic, United States Army Medical Department Activity dated 25 February 1987, to the Chief, Patient Administration Division that he was undergoing Medical Evaluation Board (MEBD) proceedings; a copy of a memorandum approving the removal of his bar to reenlistment dated 24 February 1987; a copy of a recommendation for removal of his bar to reenlistment dated 23 February 1987; a copy of his Physical Evaluation Board (PEB) Proceedings dated 8 June 1982; a copy of a Letter of Recommendation dated 16 November 1982; a copy of his Enlisted Evaluation Report (EER) for the period covering February 1983 through January 1984; two copies of his EER dated February 1986 through January 1987; a copy of Permanent Orders Number 138-71 dated 30 July 1987 awarding him the Meritorious Service Medal; and a copy of his Certificate of Release or Discharge from Active duty (DD Form 214).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that consideration be given to the following impropriety and/or equity issues:  (1) the MEBD/PEB and Army Medical Corps did not adequately consider, diagnose and treat the long-term cost and impact of the applicant’s service produced wounds, particularly their total body impact; (2) the applicant received incomplete treatment and ineffective counseling for his physical and behavioral issues as they developed as a consequence of his drop zone wounds; (3) the applicant received ineffective legal counsel and inappropriate time with which to decide about the discharge option tabled for him as he did not receive medical specialist and military legal counsel appropriate for his physical and mental condition; (4) the applicant was discharged for physical reasons without proper consideration of his mental condition and physiological brain situation; and (5) the applicant suffered long and the etiology of his deterioration is likely to portend further physical and mental debilitation and suffering in years to come.

2.  Counsel states that fairness dictates that the applicant's condition be reevaluated consistent with the best United States Army traumatic brain expertise and treatment now extant and that compensation and retirement options thereafter be justly applied, not bureaucratically denied.

3.  Counsel provides a copy of a 19-page letter from the applicant, addressed to the DVA Regional Office dated 7 May 2007; five copies of a letter addressed to two Senators, one Representative in Congress, the President, and the Secretary of the DVA; and a letter from the DVA, addressed to the applicant, which appears to be dated 9 July 2007.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the United States Army Reserve (USAR) on
21 January 1975 for 6 years.  On 30 January 1975, he enlisted in the Regular Army (RA) for 3 years and he went on to successfully complete his training as a field artillery crewmember.  He was released from active duty (REFRAD) on 23 January 1978 and transferred to the USAR Control Group (Reinforcement) to complete his Reserve obligation.  

3.  On 20 October 1980, the applicant reenlisted in the USAR for 6 years.  He then enlisted in the RA on 29 October 1980 for 4 years. 



4.  The available records show that on 31 March 1982, the applicant was admitted to the hospital after an aircraft parachute jump.  His Statement of Medical Examination and Duty Status indicate that before completely landing, he lost control of his parachute and was dragged for some distance.  He was treated at the Army Evacuation Hospital and then admitted to the March Air Force Base Hospital.  He was transferred to Womack Army Community Hospital (ACH) on 8 April 1982.  He was diagnosed with having a basilar skull fracture and osteoarthritis.

5.  A Womack ACH Inpatient Treatment Record dated 23 April 1982 indicates that the applicant's diagnosis at that time was as follows:  (1) basilar skull fracture, avulsion, portion of left parietal scalp, tongue laceration, traumatic loss of right mandibular cuspid, bilateral subjunctival hematomas; (2) second degree abrasions, both arms; and (3) reactive depression.  He underwent an operation on 16 April 1982, which included advancement flap plus split thickness skin graft to his left parietal scalp.  After surgery, he was placed on medication and convalescent leave with instructions to return to see his physician in 30 days.

6.  On 24 May 1982, the applicant was examined by his physician and his chronological record of medical care indicates that he was running 2 1/2 to 3 miles per day.  His record indicate that he was having "left-sided headaches"; that the skin at the site of his abrasions tended to tear easily; that he was having aches and pains in his shoulders, neck and arms; and that he had a subcutaneous lump at the apex of his scalp.  His record also shows that his wounds and graft were healing nicely and that his healing was normal.  His recuperative plan consisted of 30 days of convalescent leave; removal of the sutures from his scalp; being placed on a physical profile for 2 months which included no parachute jumping, no steel helmets, and physical training at his on pace; Tylenol for pain; Lubriderm for healing abrasions; and to return to see his physician in 2 months.

7.  The applicant was seen by his physician on 30 June 1982.  During this examination, he complained of left-sided headaches which were relieved by Tylenol; frequent cramping and abdominal pain associated with pellet like stools; and excessive gassiness.  His physician noted that the applicant had gained 20 pounds while he was on leave and that his injuries were well healed.  He also noted the subcutaneous lump in the left frontal area of his scalp.  The physician indicated that the applicant retained foreign body (rock) to his left frontal scalp; that he had unresolved emotional problems (anxiety); and that he suffered from irritable bowel syndrome and sleep disturbances.  His recuperative plan included mental hygiene consultation; oral medications; making an appointment in minor 
surgery for excision of the pebble from his left frontal area; making an appointment to see a specific doctor within the next month; and placed on a physical profile which included no night jumps.

8.  On 9 August 1982, the applicant was diagnosed with post closed head injury syndrome manifested by memory loss, dizziness (light headedness), increased irritability, and frequent muscle contraction and pulsatile headaches.  The applicant's Medical Record Consultation Sheet shows that he and his wife were counseled extensively on the pathogenesis and prognosis of his syndrome.  He was prescribed medication and he was directed to continue on his physical profile until he believed that he had control of his headaches and his equilibrium. The physician noted that the applicant was alert; oriented; a good historian; and his motivation for return to duty was good.  His cranial nerves were all intact including pupils and extraocular movements; his fundi revealed good venous pulsations; his motor exam revealed rapid, alternating movements; his motor strength was good; his tone was normal; his reflexes were symmetric; and there were no pathological reflexes.  His coordination was normal and his sensation was intact.  He had a left scalp wound that was healed, but remained tender; and his range of motion of his neck was good.  However, he was concerned about pushing himself beyond his capabilities produced by his head injury.

9.  The applicant extended his enlistment for 5 months on 15 March 1984.  He subsequently reenlisted on 4 January 1985 for an additional 3 years.

10.  On 2 December 1986, the applicant was seen in Neurological Consultation for headaches and weight gain.  The doctor noted that he weighed 170 pounds before the accident and at the time of this consultation, he weighed 205 pounds; that all sorts of weight losing maneuvers had been tried, all without good results; and that the applicant was facing discharge from the Army because of his weight gain.  The consultation report indicates that the applicant had not had any seizures; his mental status was normal; his right arm swung less fully than his left; there was no muscle weakness; there was no loss of muscle mass; his stretch reflexes were present and symmetrical; there were no awkwardness in either his right or left hands; his double simultaneous stimulation were normal; and there were no primitive reflexes.  The doctor's impression was that the applicant was suffering from post-concussion headaches secondary to the severe head injury he sustained in 1982, and hypothalamic pituitary dysfunction secondary to the above concussion now manifested by increasing weight gain.  The applicant was scheduled to be seen the following day by another doctor to begin an endocrine workup and to have a computed tomography (CT) scan.  He was prescribed oral medication for his post-concussion headaches and he was scheduled to return to neurological consultation in 1 week.
11.  The available records indicate that the applicant was barred from reenlistment as a result of his being enrolled in the Army’s Weight Control Program.  On 24 February 1987, after a medical determination was made that his weight gain stemmed from his accident, his bar to reenlistment was removed.

12.  The MEBD proceedings are unavailable for review.  However, an informal PEB convened on 8 June 1987 to determine the applicant's fitness for retention in the Army.  The PEB described his disabilities as nonpsychotic brain syndrome, secondary to the basilar skull fracture he sustained on 30 March 1982, with hypothalamic obesity, headaches and multiple joint complaints.  The PEB determined that he had a slight impairment for social and industrial adaptability.  The PEB indicated that he had activity limitations imposed by a permanent profile which precluded adequate performance of the normal duties associated with his office, grade, rank, and rating.  The PEB found the applicant to be physically unfit for further service and recommended that he be separated from the service with severance pay, based on a combined service-connected disability rating of 10 percent.  

13.  The available records indicate that the applicant concurred with the findings and recommendations made by the PEB and that he waived his right to a formal PEB.  Accordingly, on 24 July 1987, the applicant was honorably discharged with severance pay, under the provisions of Army Regulation 635-40, paragraph
4-24e(3), by reason of physical disability.  He had approximately 9 years,
8 months, and 5 days of net active service.

14.  On 29 February 1988, the VA awarded the applicant a 10 percent service- connected disability rating for traumatic brain disease, a 0 percent service- connected disability rating for glandular condition, a 0 percent benign growth of the skin, a 0 percent service-connected disability rating for right knee condition, and a 0 percent disability rating for left knee condition.  After filing numerous claims, appeals, and evaluations, his award has slowly increased over the years to service-connected disability ratings of 50 percent for sleep apnea associated with post traumatic hypothalamic obesity; 10 percent for hypertension (claimed as high blood pressure) associated with post traumatic hypothalamic obesity; 0 percent for lumbosaral strain; 10 percent for post traumatic hypothalamic obesity; 10 percent for baker's cyst, right knee; and 10 percent baker's cyst, left knee.  His records indicate that he currently has a combined service-connected disability rating of 70 percent.

15.  On 30 July 2007, an advisory opinion was obtained from the Deputy Commander, United States Army Physical Disability Agency (USAPDA) who opined that the applicant has submitted no evidence that confirms any error in the PEB's findings of June 1987.  The Deputy Commander, USAPDA stated that the PEB's findings were based upon his medical findings in 1986 and 1987 and how they affected him at that time.  He stated that the applicant demonstrated no cognitive deficits and had only some mild/slight residuals remaining from his head trauma 5 years earlier.  He stated that the applicant's subjective complaints of headaches were limited to a 10 percent rating and at that time, there was a Veteran's Administration Schedule for Rating Disabilities (VASRD) rating under mental conditions for disturbance of metabolism under the mental conditions section of the VASRD.  The Deputy Commander, USAPDA stated that the applicant's metabolism problem did not significantly hinder his ability to perform or adapt to industrial tasks; that his condition was mild at the time of his discharge; that he was properly rated as such by the PEB; and that findings by the DVA concerning his condition in 2003 do not provide any proof of PEB error in 1987.  The Deputy Commander, USAPDA recommended denial of the applicant's request.  

16.  In an undated letter, the applicant's counsel submitted a rebuttal to the advisory opinion stating that it was improper for the USAPDA to be asked its opinion outside of the adjudication of this case.  Counsel urged that the applicant be provided a full and complete hearing in accordance with Army Regulation based on the following six reasons:  (1) the MEBD/PEB/PDA decision-making process now is a matter of consideration in the adjudication of the applicant's case; (2) Contrary to the PDA opinion, the applicant does provide compelling evidence to the contrary of the PDA advisory opinion; (3) the applicant's condition was not fully evaluated or known by the MEBD and the applicant at the time he was medically discharged and at the time the MEBD and PEB sat in judgment; (4) the law and Army Review Board Agency exist to ensure the right decisions and the rights of former service members are acknowledged and examined for propriety and fairness and correctly achieved for the good of all; (5) the outcome and proper adjudication of the applicant's case will benefit both the US Army and the applicant as it considers who in the US Government, the USA Medical Command, the US Army and Department of Defense and/or the DVA are responsible for addressing the total disability caused by the applicant's service connected injuries that were not evident nor manifested at the time of the MEBD/PEB; and (6) this and other similar causes are needed to establish the army's responsibility for the service connected injuries that are much more severe than what the MEBD and PDA determined. 

17.  On 14 August 2007, the applicant submitted a rebuttal to the advisory opinion in which he restates that facts contained in the advisory opinion; provides past and present events that occurred in his life; provides a list of his current 
conditions; provides his opinions regarding his conditions; and provides his version of the events that took place while he was on active duty, during the MEBD and PEB proceedings, and after his discharge with the VA.

18.  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.

19.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's disability was properly rated in accordance with the VASRD.  His separation with severance pay was in compliance with law and regulation.

2.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and rated at the time of his discharge.
3.  The foregoing is supported by the opinion from the Physical Disability Agency.

4.  The contentions made by the applicant and his counsel have been noted.  All of the supporting documentation submitted by the applicant and his counsel has been considered.  However, at the time of the applicant's PEB proceedings, he was diagnosed with nonpsychotic brain syndrome, secondary to the basilar skull fracture he sustained on 30 March 1982, with hypothalamic obesity, headaches and multiple joint complaints.  The PEB determined that he had a slight impairment for social and industrial adaptability.  These were his conditions at the time of his discharge and he was rated on his unfitting conditions.  The Army does not reevaluate individuals for any conditions that manifested themselves after discharge.

5.  As previously indicated, 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.  

6.  There is no evidence in the available record, nor has the applicant or his counsel submitted any evidence to show that he was misdiagnosed, mistreated, misrepresented, underrated or unfairly separated at the time that his PEB proceedings were conducted.  The applicant concurred with the finding and recommendations made by the informal PEB and he waived his right to a formal PEB.  The fact that he may now believe that he made a mistake is not a basis for correcting his records to show that he was permanently retired by reason of physical disability.

7.  Additionally, personal appearances before the Army Board for Correction of Military Records are by invitation of the Board only, and are not automatically scheduled at the applicant’s or his/her counsel's request.  Personal appearances are scheduled only when the Board determines a personal appearance hearing is necessary.  In this case, the facts are clear and there is no basis for granting a personal appearance.

8.  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.


9.  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

__MJF__  __WDP__  __SJS___  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.




____William D. Powers____
          CHAIRPERSON




INDEX

CASE ID
AR20070000893
SUFFIX

RECON

DATE BOARDED
20071211
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  177
108.0000/DISABILITY SEPARATION
2.  179
108.0200/PERCENTAGE OF DISABILITY
3.

4.

5.

6.