IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20070013797 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge be changed to either fully medically retired or medically discharged, with full post privileges.

2.  The applicant states, in effect, that the Army failed him in their decision of the type of discharge to award him on his separation.  The Army failed to recognize that his wife had just given birth weeks prior to his discharge.  They had no insurance and were forced into debt by not having the benefits which would provide them help such as full post privileges for him and his family.  Due to severe nerve damage to his left foot, he is limited in his employment and is in extreme pain.  He is so limited in the many activities he wishes he could do.  He can't even play outside with his son due to the pain he is always in.  The injury has led to many other problems which the Army should have considered – such as further physical injuries like the damage to his liver due to the medications he is taking; emotional damage, such as depression and major anxiety and all the sleepless nights due to the worries over how they will live, worries if they will be able to provide for their son, and worries that he has failed his family.  The injury requires him to take heavy pain medications which limit his activities, including work and leisure.  The Army failed to look at all of these and other aspects of his injury when recommending a medical discharge without benefits.

3.  The applicant further states, in effect, that at the time of his injury, he was so deeply committed to the Army he felt the Army and the Department of Veterans 

Administration (VA) would help him and his family in their time of need.  Then due to limited actions by the Army and the VA, and then increased side effects, he felt it was time to take matters into his own hands.

4.  The applicant states that due to his injury, he was unemployed for three years after leaving the Army and he had no health insurance for his son who was born two weeks before his discharge.  The Army failed in its foresight on how long it would take for him to start recovering and the financial toll it would take on him.  He feels that if the Army had considered the whole aspects of his injuries and what it would take to realistically get back on his feet that a lot of pain and problems would have been avoided.  

5.  The applicant is requesting a better decision for him and his family.  It took the VA two years to complete the application process.  In that time he had no money and at 23 years of age had to live with his parents because he and his family had no money or a place to go.  Sometimes, they would only have enough money for baby formula for their newborn son.  Their situation has only improved due to his financially stable parents.  The Army gave him $9,000.00 which had to be paid back to the VA before he received any of his low pension.  Now, due to the Army's lack of compassion or foresight of what it would realistically take to be able to provide for his family, he is so far in debt it will take 15 years to dig out of his metaphoric hole.

6.  In support of his request, the applicant submits three self-authored addendums to his DD Form 149, Application for Correction of Military Record.  The applicant indicated he was submitting a copy of a VA disability rating and a copy of a letter he apparently wrote to a Member of Congress (MOC) [a Senator]; however, these documents were not attached or included with his request.

7.  An inquiry was submitted to the Board from a MOC [a Member of the House of Representatives].  In this inquiry, the MOC asks that the applicant's request be reviewed and that, in effect, he be provided with information so that he can help his constituent.

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 records show he enlisted in the US Army Reserve on 9 June 2000 in the Delayed Entry / Enlistment Program.  On 27 June 2000, he enlisted in the Regular Army for 4 years.  He successfully completed basic combat training at Fort Jackson, South Carolina.  The applicant was reassigned to Fort Huachuca, Arizona, to undergo training leading to award of the military occupational specialty, 98J, Electronic Intelligence Interceptor/Analyst.

3.  The evidence shows the applicant sustained a spider bite on 9 May 2001.  He was issued a permanent profile for regional pain syndrome (Dystrophy) of the left foot on 16 August 2001.  Assignment limitations were imposed on the applicant for "no running for conditioning, no jumping, no crawling, no push-ups, no sit-ups, and no LBE wear" [wearing of load-bearing equipment].

4.  On 6 September 2001, the applicant's commander prepared a memorandum, Subject:  Commander's Performance Statement.  The date of the memorandum was later changed to 28 February 2002.  The commander stated, in addition to other related information, in effect, the applicant was a good Soldier; however, he was unable to attend training due to the severe pain in his foot.  He could not perform his duties as a Soldier, to include participating in the physical fitness program.  Since he was unable to pass the APFT (Army Physical Fitness Test), in accordance with standards set forth in Field Manual 21-20, and attend training in order to complete the academic requirements, he was ineligible to graduate from AIT (Advanced Individual Training) and continue to serve in the Army.

5.  On 28 February 2002, the applicant prepared a memorandum addressed to the President of the PEB, Subject:  Request for Temporary Disabled Retirement List (TDRL).  In this memorandum, he requested that he be placed on the TDRL due to an unforeseen medical condition caused by a bite from a Brown Recluse spider.  He stated he loved the Army and loved serving his country; therefore, he did not want to be separated or discharged.  He was requesting TDRL to allow him sufficient time for recovery so that he could serve his country to 100 percent of his abilities.  The TDRL, he stated, would give him the additional time required by allowing him a maximum of 5 years to get well and he could also be reevaluated 

every 12 to 18 months.  Even though he had physical limitations, his commitment to the Army and his country remained strong and he had informed his chain of command that as soon as he got well he planned to reenter the Army.

6.  On 8 March 2002, the applicant appeared before a Medical Evaluation Board (MEB), for an evaluation of his Regional Pain Syndrome, Reflex Sympathetic Dystrophy.  The applicant did not present views in his own behalf.  After consideration of clinical records, laboratory findings, and physical examination, the MEB found that all the applicant's diagnosed medical condition had been incurred while he was entitled to base pay, did not exist prior to his service, and it was permanently aggravated by service.  The MEB recommended that the applicant be referred to a PEB.  When the applicant was referred to the MEB, he indicated that he desired to continue on active duty under Army Regulation 635-40.  The MEB determined that continuance on active duty under the provisions of Army Regulation 635-40 was medically contraindicated.  The findings and recommendation of the board were approved on 11 March 2002.  On 12 March 2002, the applicant agreed with the findings and recommendation of the MEB.

7.  The evidence shows that on 28 March 2002, the applicant appeared before an informal PEB, for an evaluation of "Spider bite left foot (May 01), with subsequent cellulitus, status post incision and drainage, intravenous antibiotics with development of reflex sympathetic dystrophy which was unresponsive to epidural injections and sympathetic block and requiring narcotic analgesia."  The DA Form 199, Physical Evaluation Board (PEB) Proceedings, showed the applicant remained on Duragesic patches and Roxicodone.  Residual pain and swelling markedly limited his ambulatory activities.  His medical condition was rated analogous to neuralgia of the sciatic nerve, moderate.  The board considered the applicant's condition as described in the record.  Based on a review of the medical evidence of record, the PEB concluded that his functional limitations in training the appropriate level of mobility caused by the physical impairments recorded made him physically unfit to perform the duties of a Soldier of his rank and primary specialty.  The board found the applicant was physically unfit and recommended a combined rating of 20 percent and that the applicant be separated with severance pay, if otherwise qualified.  On 10 April 2002, the applicant concurred with the PEB's findings and recommendation and waived a formal hearing of his case.

8.  A completed DA Form 199, on file in the applicant's service record shows that on 10 April 2002, he was informed of the findings and recommendations of the PEB by the PEBLO (PEB Liaison Officer).  The results were explained to him as were his rights pertaining thereto.  The Soldier, the form indicates made the elections that are shown on the form.

9.  The applicant was honorably discharged in the rank and pay grade of Private First Class, E-3, on 1 May 2002, under the provisions of Army Regulation 635-40, paragraph 4-24b(3), for disability, with severance pay.  The applicant was given disability severance pay in the amount of $5,214.00.  On the date of his discharge, the applicant had completed 1 year, 10 months, and 5 days active military service, with no time lost.

10.  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 (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).

11.  PEBs 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.

12.  Title 10, United States Code, Chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

13.  Department of Defense Directive 1332.18, Part 7, Final Disposition, paragraph E, Disposition of Unfit Members, provides for the permanent disability retirement of members who have at least 20 years of active service or whose total disability rating is at least 30 percent (emphasis added).

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The evidence shows that the applicant appeared before a MEB for evaluation of his diagnosed Regional Pain Syndrome, Reflex Sympathetic Dystrophy.  After consideration of clinical records, laboratory findings, and physical examination, the MEB recommended that the applicant be referred to a PEB.  The applicant concurred with the MEB's findings and recommendation.

3.  The applicant appeared before an informal PEB for evaluation of a spider bite to his left foot, with subsequent cellulitus, status post incision and drainage, which required intravenous antibiotics which developed reflex sympathetic dystrophy and was unresponsive to epidural injections and sympathetic block and required narcotic analgesia.

4.  The board considered the applicant's condition as described in the record.  The PEB concluded that his functional limitations in training caused by the physical impairments made him physically unfit to perform the duties of a Soldier of his rank and primary specialty.  The board found the applicant was physically unfit and recommended a combined rating of 20 percent and that the applicant be separated with severance pay, if otherwise qualified.  On 10 April 2002, the applicant concurred with the PEB's findings and recommendation and waived a formal hearing of his case.

5.  The applicant was honorably discharged in the rank and pay grade of Private First Class, E-3, on 1 May 2002, under the provisions of Army Regulation 635-40, paragraph 4-24b(3), for disability, with severance pay in the amount of $5,214.00.

6.  The applicant's contentions that the Army failed him in their decision as to the type of discharge to award him on his separation has been noted; however, there is no available evidence that the applicant’s disability was improperly rated.  His separation was in compliance with law and regulation.

7.  In view of the foregoing, there is no basis for granting the applicant's request for a medical discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  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.



      _________x_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20070013797





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20070013797



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1