RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 13 March 2008  
	DOCKET NUMBER:  AR20070015108 


	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.  Rial D. Coleman

Analyst


The following members, a quorum, were present:


Mr. Mark D. Manning 

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. Rowland C. Heflin

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, an increase of the disability rating for his service-connected disability, to be removed from the temporary disability retired list (TDRL), and to be permanently retired for physical disability.

2.  The applicant states, in effect, the Army granted him a disability rating of 
30 percent and placed him on the TDRL.  He contends that his doctor failed to list all of his medical conditions for consideration by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) prior to the determination of his disability rating.  The applicant concludes that his disability rating was based upon procedures rather than his injuries and illnesses.

3.  The applicant provides two self-authored, one-page letters appealing his disability rating, a statement from his physician, and a synopsis of his medical history as additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the United States Army Reserve on 25 September 1990 and entered active duty in the Regular Army on 19 November 1991.  Upon completion of basic combat training and advanced individual training, he was awarded military occupation specialty (MOS) 54B (Chemical Operations Specialist).  In December 2000, the applicant was awarded MOS 92Y (Unit Supply Specialist).  The highest grade he attained while serving on active duty was the rank of sergeant (SGT)/pay grade E-5.

2.   The applicant's military service records contain a DA Form 3947 (Medical Evaluation Board Proceedings), dated 9 September 2005.  This document shows that a MEB determined the applicant had two medical conditions which did not meet standards for retention on active duty.  This document further shows:

	a.  the applicant's case was referred to a PEB;

	b.  on 14 September 2005, the applicant did not agree with the board's findings and recommendation and submitted an appeal requesting permanent medical retirement; and

	c.  on 16 September 2005, the approval authority considered the appeal and confirmed the original findings and recommendations of the board.

3.  United States Army Physical Evaluation Board, Fort Sam Houston, Texas memorandum, dated 27 September 2005, Subject:  Discontinuance of Physical Evaluation Board Proceedings Pertaining to:  [applicant's rank, name, and social security number] shows the applicant's PEB proceedings were discontinued pending receipt of additional information from the hospital that conducted his MEB.

4.  Headquarters, United States Army Medical Department Activity, Fort Sill, Oklahoma memorandum, dated 25 October 2005, shows the MEB authority provided the additional information to the PEB for consideration.

5.  DA Form 199 (Physical Evaluation Board Proceedings), dated 27 October 2005, shows a PEB found the applicant unfit for continued service due to his knee and neck conditions.  The form further shows the PEB recommended a combined disability percentage of 30 percent with placement on the Temporary Disability Retirement List (TDRL).  On 1 November 2005, the applicant concurred with the PEB's findings and waived his right to a formal hearing.

6.  Headquarters, United States Army Garrison, Fort Sill, Oklahoma Orders 
349-0749, dated 15 December 2005, released the applicant from assignment and duty because of physical disability incurred while on active duty effective 
31 January 2006 and placed him on the TDRL in the grade of sergeant (SGT) with a disability rating of 30 percent effective 1 February 2006.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 January 2006 shows he was discharged from enlisted status in the retired grade of SGT and placed on the retired list due to temporary disability.

8.  On 29 April 2006, the applicant submitted an appeal of the MEB and PEB findings to the Army Disability Rating Review Board (ADRRB).  The basis of his appeal, in effect, was that the MEB and PEB rated him based upon medical procedures he had received rather than his injuries and illnesses that prevented him from performing the requirements of his MOS.

9.  Army Review Boards Agency, Arlington, Virginia memorandum, dated 10 May 2006, Subject:  Army Disability Rating Review Board Decision [applicant's name and social security number] informed the applicant that after careful review of all available information, the ADRRB affirmed the decision of the PEB and found the disability rating of 30 percent proper.  The ADRRB also determined the applicant received a full and fair hearing and the evaluation proceedings conformed to current laws and regulations.

10.  The applicant provides a letter from a doctor assigned to Family Medicine Clinic 2, Headquarters, United States Army Medical Department Activity, Fort Sill, Oklahoma, dated 17 November 2006, Subject:  Medical Letter for US [United States] Court of Appeals.  The doctor, in effect, states the applicant was diagnosed as having fibrositis while on active duty, but was most recently diagnosed as having fibromyalgia.  The doctor continues that he thinks the applicant had this condition on active duty, but it was misdiagnosed as fibrositis.

11.  On 15 November 2007, an advisory opinion was obtained from the United States Army Disability Agency (USAPDA) regarding the applicant's contention that, in effect, that he was not satisfied with his medical care and the failure of military medical authorities to list all of his injuries adversely affected the PEB findings.  The USAPDA Legal Advisor opined that there were no errors by the PEB when the applicant was placed on the TDRL, that additional medical conditions cannot be considered until he is removed from the TDRL, and recommended that the applicant's request be denied.  The factors that contributed to the USAPDA's findings and recommendation are as follows:

	a.  On 9 September 2005, the applicant's MEB was completed with only two diagnoses listed.  On 14 September 2005, the applicant nonconcurred, stating that he was disappointed in his medical care and that he was in a lot of pain.  The applicant did not indicate that other conditions or diagnoses need to be added to the MEB.  The MEB approval authority considered the applicant's comments, but reaffirmed the decision of the MEB.

	b.  On 27 October 2005, a PEB found the applicant unfit, awarded a disability rating of 30 percent, and placed him on the TDRL.  On 1 November 2005, the applicant concurred with the PEB's findings and waived his right to a formal hearing.

	c.  On 22 August 2007, the applicant's TDRL medical reevaluation was completed and provided for his review.  The medical authority who conducted the TDRL reevaluation determined that although the applicant's "Review of Systems" showed some deficits, they were in conditions that did not merit listing as diagnoses that did not meet medical retention standards.  On 27 August 2007, the applicant nonconcurred and indicated he had recently been treated by a physician who had diagnosed him with the condition of fibromyalgia.  The applicant stated the physician also opined that he may have had fibromyalgia while on active duty.  On 28 August 2007, the TDRL approving authority reviewed the applicant's comments, but reaffirmed the TDRL reevaluation findings.

	d.  On 7 September 2007, a PEB found that the applicant's conditions were not yet stable for rating purposes and continued him on the TDRL.

	e.  Paragraph 7-20b (Changes in a Soldier's condition while on the temporary disability retired list) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the combined disability percentage rating approved at the time the Soldier was placed on the TDRL cannot be changed by the PEB throughout the period the Soldier is on the TDRL. The regulation further provides that adjustment will be made at the time of removal from the TDRL to reflect the degree of severity of those conditions rated at the time of placement on the TDRL and any ratable conditions identified since placement on the TDRL.

12.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 (Standards of unfitness because of physical disability) of this regulation, provides, in pertinent part, that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

13.  Army Regulation 635-40, paragraph 3-9 (The temporary disability retired list) provides, in pertinent part, that the requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have
20 years of service computed under Section 1208 of Title 10, United States Code (USC).  In addition, the condition must be determined to be temporary or unstable.

14.  Paragraph 4-10 (The Medical Evaluation Board) of Army Regulation 
635-40 provides that MEBs 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 qualification for retention based on the criteria in AR 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.


15.  Paragraph 4-17 (Physical evaluation boards) of Army Regulation 
635-40 provides that PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendations may be revised.  It is a fact-finding board for the following: 

	a.  Investigating the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.

	b.  Evaluating the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.

	c.  Providing a full and fair hearing for the Soldier as required under Section 1214 of Title 10 USC.

	d.  Making findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

16.  Paragraph 7-4 (Requirement for period medical examination and physical evaluation board evaluation) of Army Regulation 635-40 provides that a Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his doctor failed to list all of his medical conditions for consideration by the MEB and PEB prior to the determination of his disability rating, that his disability rating was based upon medical procedures he received rather than his injuries and illnesses, and that he should be permanently retired were carefully considered and found to be without merit.

2.  The record shows the applicant was evaluated by a MEB and recommended for referral to a PEB.  The record also shows that although the applicant nonconcurred with the findings of the MEB, he made no mention of any additional medical conditions that should be considered by the MEB.  After considering his comments, the MEB approval authority approved the original findings and recommendations of the MEB.


3.  The record further shows the applicant was subsequently evaluated by a PEB and it was determined that his disability precluded continued performance of the duties required of his grade and MOS.  The record also shows that the PEB determined the applicant to be physically unfit for retention in the United States Army, recommended a combined disability rating of 30 percent, and the applicant’s placement on the TDRL.  The record shows the applicant concurred with the findings and recommendations of the PEB and waived his right to a formal hearing.

4.  The applicant was released from assignment and duty because of physical disability incurred while on active duty effective 31 January 2006 and placed on the TDRL in the grade of SGT with a disability rating of 30 percent effective 
1 February 2006.

5.  Army Regulation 635-40 provides, in pertinent part, that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.

6.  The ADRRB denied the applicant's appeal of the PEB findings.  The ADRRB affirmed the decision of the PEB and found the disability rating of 30 percent proper.  The ADRRB also determined the applicant received a full and fair hearing and the evaluation proceedings conformed to current laws and regulations.

7.  The applicant's TDRL medical reevaluation reaffirmed the conditions identified by medical authorities prior to his placement on the TDRL.  Although the examination also showed some other deficits in his medical condition, they were in conditions that did not merit listing as diagnoses that did not meet retention standards.  Although the applicant nonconcurred with the findings of the TDRL medical reevaluation, the approval authority denied his appeal and approved the findings of the medical reevaluation.

8.  Following the TDRL medical reevaluation, a PEB found that the applicant's conditions were not yet stable for rating purposes and continued him on the TDRL.  Army Regulation 635-40 provides that the combined disability percentage rating of a Soldier on the TDRL cannot be changed by the PEB until the Soldier is removed from the TDRL.  The regulation further provides that adjustment will be made at the time of removal from the TDRL to reflect the degree of severity of those conditions rated at the time of placement on the TDRL and any ratable conditions identified since placement on the TDRL.

9.  The record contains no evidence and the applicant provides insufficient evidence to show that he was adversely affected by an omission of any of his medical conditions for consideration by the MEB and PEB prior to the determination of his disability rating.  In addition, there is no evidence to show that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the processing of the applicant's disability processing.  Therefore, the applicant is not entitled to correction of his records.

10.  In order to justify correction of a military record the applicant must show that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_MDM___  _RCH__  __JCR___  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.





__Mark D. Manning__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.