RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070011997 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Jeanette McCants

Member

Mr. Scott W. Faught

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, that he be reinstated to the TDRL (Temporary Disability Retired List).  

2.  The applicant states, in effect, that he should be reinstated to the TDRL as stated from his initial discharge.  He is still mentally impaired.  He was diagnosed with schizophrenia and was hospitalized at VAMC (Veterans Administration Medical Center) twice after his discharge.  He has follow-up appointments with the doctor at VAMC regularly and by VA MHICM (Mental Health Intensive Case Management) every week.  He is on medications, is currently 100% disabled, and rated incompetent.  He is also on Social Security as well.  He believes that it is unjust to remove him from the TDRL because he was not allowed to serve or be retired.  

3.  The applicant provides copies of several extracts from his medical records and the VAMC, a copy of his VA Rating Decision, and copies of additional documents in support of his request.

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's record shows he enlisted in the US Army Reserve on 26 March 1998 and in the Regular Army on 17 June 1998.  He successfully completed basic combat training and advanced individual training at Fort Benning, Georgia.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 11B, Light Weapons Infantryman.  He was promoted to pay grade E-3 effective 1 August 1999.


3.  On 8 May 2000, the applicant was seen as an outpatient at Walter Reed Army Medical Center (WRAMC).  He presented in an unresponsive state with dehydration/starvation symptoms and occupational problems.  He stated that there was no prior history of illness.  He was diagnosed as having schizophrenia (undifferentiated type).  A presumption of in line of duty (LOD) applied.

4.   The applicant was issued a permanent profile of 111114, on 25 May 2000, due to schizophrenia.  His profile assignment limitations were NML (normal) sleep hours, no weapons, no government vehicles, no duty where others/own safety may be compromised.  His APFT (Army Physical Fitness Test) consisted of push-ups, sit-ups, and the two-mile run with alternate aerobic events of unlimited walking, running, bicycling, and swimming.

5.  On 5 June 2000, the applicant's case was considered by a MEB (Medical Evaluation Board), at WRAMC.  The MEB diagnosed the applicant as having schizophrenia, undifferentiated type, manifested by pervasive suspiciousness, catatonia, avolition, alogia, and disorganization, including disorganized speech, stress; routine military stressors; predisposition, none; impairment for further military duty, marked; impairment for social and industrial adaptability, considerable.  This diagnosis was medically unacceptable in accordance with Army Regulation 40-501.  He was also diagnosed as having dehydration and starvation ketosis, resolved, which was medically acceptable.  The MEB recommended that the applicant be referred to a PEB (Physical Evaluation Board).  The applicant indicated that he did not desire to continue on active duty. The findings and recommendations were approved on 25 August 2000.  The applicant concurred on that date.  

6.  On 25 August 2000, the applicant's commander prepared a memorandum for the PEB Liaison Officer.  He indicated that the applicant had been attached to the medical holding company for the past two months and prior to his attachment, he served in a light infantry rifle company.  His current physical condition prevented him from performing the standard duties of a Soldier and he was currently not pending any future duty assignment.  He indicated that the applicant was not pending adverse action.  

7.  On 30 August 2000, the applicant appeared before an informal PEB.  He was diagnosed as having schizophrenia, undifferentiated type.  The PEB stated that based on a review of the medical evidence of record, it concluded that his medical condition prevented satisfactory performance of duty in his grade and specialty.  The PEB recommend a combined rating of 30 percent and placement on the TDRL.  The PEB indicated that his retirement was not based on a disability resulting from an injury received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in the LOD during a period of war as defined by law.  The applicant concurred with the results of the PEB and waived a formal hearing of his case on 19 September 2000.  The PEB recommend reevaluation in March 2001 and March 2002.

8.  The applicant was honorably separated from active duty on 22 November 2000, under the provisions of Army Regulation 635-40, paragraph 4-24b(2), for disability, temporary, in the pay grade of E-3.  He was placed on the TDRL effective 23 November 2000, by reason of physical disability.  He had completed 2 years, 5 months, and 6 days of creditable service.  

9.  On 20 May 2002, the applicant was attached to Ireland Army Community Hospital, Fort Knox, Kentucky, for the purpose of a periodic physical examination.  He was examined by a physician on 24 June 2002.  In summary, the physician indicated that he had not been mentally hospitalized since, in effect, his release from active duty and placement on the TDRL.  He was diagnosed as having schizophrenia, undifferentiated type, in remission, and military stresses, separation from wife and family.  His condition had changed significantly for the better and appeared stable.  The physician was not able to discern any impairment of social or occupation functioning.  This evaluation was approved for submission to the PEB.  

10.  On 1 July 2002, the PEBLO (PEB Liaison Officer) forwarded the pre-dated [18 July 2002] results of the TDRL periodic examination to the applicant by certified mail.  He failed to make an election within the time limit allowed and his case was forwarded for further processing.

11.  He acknowledged receipt that he was informed of the approved findings and recommendations of the board and agreed.  His statement is dated 13 July 2002.

12.  On 22 July 2002, an informal PEB convened at Fort Sam Houston, Texas.  The applicant was diagnosed as having schizophrenia, undifferentiated type, in remission.  The PEB indicated that he had not been hospitalized since being placed on the TDRL and is not on any medications.  The PEB indicated that he remained unfit to reasonably perform the duties required by previous grade and military specialty.  His current condition was considered sufficiently stable for final adjudication.  He was found physically unfit with a recommendation of zero percent.   




13.  On 25 July 2002, the applicant was informed of the results of the PEB in writing and of his opportunity to make an election.  

14.  On 12 August 2002, the Personnel Management Officer, US Army PEB, Fort Sam Houston prepared a memorandum for the Commander, US Army Physical Disability Agency (USAPDA), WRAMC, Subject:  Failure to Make an Election.  He indicated that the applicant had received the findings and recommendations of the informal PEB, dated 22 July 2002, as verified by Federal Express Tracking Report, delivered on 25 July 2002.  He informed the Commander, USAPDA, that since the applicant failed to make an election within the prescribed time limits, his case was forwarded for further processing.

15.  The applicant was removed from the TDRL effective 21 August 2002 and was honorably discharged due to his permanent physical disability.  He received zero percent disability.

16.  The applicant provides a copy of his VA Rating Decision, dated 26 June 2007, which shows that he was granted a 100 percent service connected disability, for, in effect, schizophrenia.  His disability was shown to be permanently and totally disabling. 

17.  On 20 August 2007, the applicant was approved for Social Security benefits. 

18.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

19.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.
20.  Paragraph 4-24 of Army Regulation 635-40 pertains to the disposition of Soldiers by the U.S. Army Human Resources Command (AHRC) upon the final decision of the United States Army Physical Disability Agency (USAPDA).  It states that AHRC will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the USAPDA for clarification or reconsideration when newly discovered evidence becomes available and is not reflected in the findings and recommendations. Subparagraph 4-24b(2) applies to placement on the TDRL.

21.  Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating. 

22.  Paragraph 7 -7, of the same regulation, states that medical examiner and adjudicative bodies will carefully evaluate each case.  They will recommend removal of the Soldier's name from the TDRL as soon as the Soldier's condition permits.  Placement on the TDRL confers no inherent right to remain for the entire 5-year period allowed under Title 10, USC, 1210.

23.  Paragraph 7-20, PEB processing, states, in pertinent part, that if the PEB recommends removal from the TDRL, the PEB will forward to the Soldier a DA Form 199 (PEB Proceedings) and letter of explanation by certified mail, restricted delivery, return receipt requested.  The letter will inform Soldiers of their rights and responsibilities.  It will provide the name, location, and telephone number of the PEBLO.  The Soldier will sign the original copy of the DA Form 199 and return it after giving his or her choice of options in block 13.  The copy of the DA Form 199 is the Soldier's copy.  If the certified mail receipt is not returned, or if the correspondence is returned undelivered, the PEB will try to verify the Soldier's address by contacting the proper agencies.  If a new address is obtained, the PEB will try to deliver the notice.  If not, a memorandum waiving the Soldiers right of election will be prepared.  If the receipt is returned but no election is received, the PEB president will prepare a memorandum waiving the Soldier's right of election for failure to respond. The certified mail receipt will be included in the case file as proof that the Soldier was notified.  The PEB president will forward the case file to USAPDA for final disposition. 



24.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability.  Furthermore, 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 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.

25.  Title 38, United States Code permits the VA to award compensation for disabilities which were incurred in or aggravated by active service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was diagnosed as having schizophrenia, undifferentiated type.  He appeared before an MEB.  His medical condition prevented satisfactory performance of duty in his grade and specialty and was medically unacceptable in accordance with regulation.  He indicated that he did not desire to continue on active duty.  He was referred to a PEB. 

2.  The PEB found the applicant unfit for military duty in accordance with regulation and recommended a combined rating of 30 percent and placement on the TDRL with reexamination in March 2001 and March 2002.  He was honorably separated from active duty on 22 November 2000, under the provisions of Army Regulation 635-40, chapter 4, paragraph 4-24b(2), for disability, temporary, in the pay grade of E-3.  He was placed on the TDRL effective 23 November 2000.

3.  The applicant was reexamined and appeared before another PEB on 22 July 2002.  He was diagnosed as having schizophrenia, undifferentiated type, in remission.  He had not been hospitalized since being placed on the TDRL and was not on medications.  He remained unfit and was found physically unfit with a recommendation of zero percent.

4.  The applicant was informed of the results of the periodic PEB and provided an opportunity to make an election; however, he failed to make an election within the prescribed time limits, and his case was forwarded for further processing.  He was removed from the TDRL and was honorably discharged due to his permanent physical disability with a zero percent disability.

5.  The applicant has not provided any evidence to show that he should be reinstated to the TDRL.

6.  There is no evidence or indication that the applicant's disability was not sufficiently stable to be rated permanently, or that it could improve to the point where he could be returned to active duty.

7.  The applicant has not provided any evidence to show that he was not properly rated for his disabilities.

8.  The applicant applied to VA after his removal from the TDRL.  He was awarded a 100 percent service connected disability rating for schizophrenia.  He was approved for Social Security benefits.

9.  In accordance with governing laws, the VA is the department, after a Soldier's discharge, responsible for compensating veterans when service-related physical conditions cause social or industrial impairment.

10.  Any rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings based on those policies and regulations and have no bearing on what the Army did in processing the Soldier for medical separation.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__J_____  __JM____  ___SWF_ 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
AR20070011997
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071129
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20020821
DISCHARGE AUTHORITY
AR 635-20
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110
2.

3.

4.

5.

6.