RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 May 2008
	DOCKET NUMBER:  AR20070013764 


	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.  




Director



Analyst

      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 she be granted permanent disability retirement.

2.  The applicant states, in effect, she was on active duty when she hurt her shoulder and had arthroscopic surgery.  She was referred to the Physical Disability Evaluation System (PDES) evaluation of left upper extremity pain, and migraine headache pain.  She underwent an MEB (Medical Evaluation Board) and a PEB (Physical Evaluation Board).  She was found unfit for duty and placed on the Temporary Disability Retired List (TDRL) subject to periodic re-evaluation of her conditions.  In 2007, she was re-evaluated and still found to be unfit, but her condition was determined to have improved.  She was removed from the TDRL and separated with a 10 percent disability.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) showing active duty service from 24 September 2002 through 4 September 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant, with prior service in the Army National Guard and US Army Reserve, enlisted in the Regular Army, serving as a Specialist (SPC)/E-4 in military occupational specialty (MOS) 42L (Administrative Specialist) from 24 September 2002 through 4 September 2005.

2.  In October 2002, the applicant injured her shoulder while lifting a light fixture.  She underwent an arthroscopic impingement procedure on 20 October 2003.  She also complained of migraine headaches and, in March 2005, she was physician-referred to the PDES for an MEB.

3.  The applicant underwent an MEB at Blanchfield Army Community Hospital, Fort Campbell, KY.  The MEB found her unfit due to migraine headaches shoulder pain, and she was referred to a PEB.

4.  On 6 June 2005, a PEB was conducted at Fort Sam Houston, TX.  It found the applicant disabled with a disability rating of 30 percent for migraine headaches and 10 percent for chronic pain, left shoulder.  The PEB recommended the applicant be placed on the TDRL.  She concurred.

5.  On 4 September 2005, the applicant was honorably retired by reason of temporary disability.  She was informed that she would be required to undergo periodic re-evaluation of her physical condition over the next five years.
6.  On 13 March 2007, the applicant consulted a civilian neurologist for her headaches.  The doctor found, "she cannot perform her duty (sic)....  I think the patient can get better and can resume all her activity...she has a potential to get better."

7.  On 3 May 2007, the applicant underwent a re-evaluation by a PEB at Fort Sam Houston.  She provided the medical evaluation she received from her civilian neurologist; however, the PEB found her condition, while still unfitting, had improved – she was rated as 10 percent disabled for chronic pain, left (non-dominant) shoulder, and zero percent for migraines – her headaches were determined to be not sufficiently severe as to be labeled "prostrating."  She was recommended for separation with severance pay, if qualified.

8.  The results of the PEB were sent to the applicant and delivered on 4 May 2007.  She did not respond and, on 22 May 2007, the PEB forwarded the applicant's case file to the US Army Physical Disability Agency, Washington, DC. Subsequent to this action, the applicant did respond and non-concurred with the results of the PEB and requested another review.  Her request was denied.

9.  Evidence is not in the record; however, there is a notation on the applicant's DA Form 199 (Physical Evaluation Board Proceedings) indicating that orders were published on 29 May 2007 removing the applicant from the TDRL and discharging her with a 10 percent disability rating.

10.  Chapter 61, Title 10, U.S. Code provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, US Army Human Resources Command, Alexandria, VA, is responsible for operating PDES and executes Secretary of Army decision-making authority as directed by Congress in Chapter 61, 10 USC, and in accordance with DoD Directive 1332.18 and Army Regulation 635-40.  The objectives of the system are to:  maintain an effective and fit military organization with maximum use of available manpower; provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability; and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected.

11.  A Soldier is referred into the PDES system when he/she no longer meets medical retention standards in accordance with AR 40-501, chapter 3, as evidenced in an MEB; receive a permanent medical profile, and are referred by 
an MOS/Medical Retention Board; are command-referred for a fitness for duty medical examination; or referred by the Commander, HRC.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform because of office, grade, rank or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  The PDES relies heavily on the performance data provided by the Soldier's immediate chain of command.  Variance in case findings is often the result of inadequate information being provided relative to the Soldier's duty performance.

12.  Once a determination of physical unfitness is made, the PEB is required by law to determine the physical disability rating using the Veterans Schedule for Rating Disabilities (VASRD).  Physical disability disposition – retirement or separation with severance pay – is based on the criteria set forth in 10 USC Chapter 61.  Per 10 USC Chapter 61, three factors determine disability disposition: the rating percentage, the stability of the disabling condition, and total years of active federal service.  For service-incurred or aggravated conditions not involving misconduct, the dispositions are:

	a.  Permanent disability retirement occurs if the condition is permanent and stable and rated at a minimum of 30 percent or the Soldier has 20 years active federal service.

	b.  Temporary disability retirement occurs if the Soldier is entitled to permanent disability retirement except that the disability is not stable for rating purposes.  However, stability does not include latent impairment –  what might happen in the future.

If placed on the TDRL, the Soldier is required to undergo a periodic medical reexamination within 18 months followed by PEB evaluation.  The Soldier may be retained on the TDRL or final determination made.  While the law provides for a maximum tenure on the TDRL of 5 years, there is no entitlement to be retained for the entire period.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was placed on the TDRL because she was determined to be unfit due to migraine headaches (30 percent) and shoulder pain (10 percent).

2.  Upon TDRL re-evaluation, the applicant's condition was found to have improved concerning her migraine headaches.  She was rated at zero percent for migraines and 10 percent for shoulder pain.  It was recommended she be removed from the TDRL and discharged with severance pay, if qualified.

3.  The applicant was provided a suspense date for responding to the TDRL re-evaluation.  She did not respond by the suspense date and she was discharged on 29 May 2007.  She finally responded in June 2007 and she was denied any reconsideration of her case.

4.  The applicant has not provided any new medical evidence which would warrant a change in the PEB's findings or reconsideration of her discharge.  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 did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



								XXX
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070013764



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508