RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20070015896 


	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.

	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:

The applicant defers to counsel and remains silent.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Attorney, as counsel for the applicant, requests, in effect, that the applicant’s discharge by reason of physical disability, with severance pay, be changed to show she was placed on the TDRL (Temporary Disability Retired List), or placed on the Retired List, by reason of physical disability, as deemed appropriate with a combined disability rating of 30 percent, or more, or a rating that the Board feels more appropriately reflects the facts of her case.

2.  Counsel provides facts relevant to his client’s application: 

	a.  Counsel argues that the error was not discovered until 28 April 2006, as a result of surgery conducted on her left ankle, the same ankle injury that resulted in her separation by reason of physical disability from the Army.  

	b.  Counsel states that the applicant had originally accepted the findings of the informal panel [sic PEB/Physical Evaluation Board] in her case regarding the extent of her injury and consented to final agency action being taken in her case. 

	c.  Counsel states that had the applicant known the true extent of her injuries, she would have proceeded through the full range of rights and remedies available to her through the Army PEB system.

      d.  Counsel states that having no other recourse, the applicant requests that the Board sit as the first formal medical board in her case and find that her degree of impairment due to service-incurred injuries that rendered her unfit is in excess of 30 percent disabling and place her on the TDRL or PDLR as the Board may deem appropriate in light of the facts presented.

3.  In counsel’s outline of petition, he states that the applicant was processed through the PEB system for a left ankle instability and chronic left ankle pain, although her medical history included documentary evidence of bilateral hip pain, lower back pain, early signs of pelvic disease and multiple stress fractures to both feet.  Counsel elaborates in detail on the applicant's injuries of:  left ankle injury (VA (Department of Veterans Affairs) Codes 5311/5312); lumbosacral strain (VA Code 5237); and pelvic pain/endometriosis (VA Code 7699/7629).  He described the severity of each diagnosis/condition and opines that she should be assigned a higher disability rating for her conditions under the VARSD (Veterans Administration Schedule for Rating Disabilities) Codes.

4.  Counsel provides a copy of the applicant’s PEB results, with attachments, and copies of additional evidence for the applicant’s 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 she enlisted in the Regular Army on 24 April 2003.  She was trained as a Signal Support Systems Specialist, in military occupational specialty (MOS), 31U.  

3.  The applicant was administered an APFT (Army Physical Fitness Test) on 14 August 2003, 2 September 2003, and on 16 September 2003.  The tests show that she failed the 2-mile run each time.

4.  On 17 August 2003, the applicant was treated and diagnosed as having pelvic inflammatory disease (PID).  

5.  On 31 October 2003, the applicant was treated for lower back pain.

6.  On 19 April 2004, the applicant was given a physical examination for the purpose of an MEB (Medical Evaluation Board).  Her DD Form 2808 (Report of Medical Examination) diagnosed her as having:  multiple stress fractures; left tibia right first metataursal; and left Achilles tendonitis.  It states that she was found qualified for service MEB and was issued a physical profile of 113111.




7.  On 20 April 2004, the applicant's commander prepared a memorandum for the PEBLO (PEB) Liaison Officer, of DDEAMC (Dwight David Eisenhower Army Medical Center), Fort Gordon.  He indicated that the applicant was physically incapable of reasonably performing her duties as a 31U, Signal Support Systems Specialist, due to her numerous medical conditions that included several cases of stress fractures, in both legs.  Additionally, she was diagnosed with bracitious, arthritious, and tendentious in both hips, and left ankle.  She also had severe joint pain/problems in her lower back and left ankle that were pending further tests.  Her medical condition prevented her from passing the APFT, 2 mile run.  Her condition further precluded her from performing critical field duties, such as road marching, lifting, carrying heavy equipment, and standing for a long period of time.  

8.  The commander stated that as a Signal Support Systems Specialist, the applicant was routinely required to install, maintain, and troubleshoot Signal support equipment and terminal devices; operate, and maintain designated radio and data distribution systems; maintain selected electronic devices; perform Signal support functions, to include providing technical assistance and training for user owned and operated automation and communications equipment; prepare maintenance and supply request for unit level Signal support; operate and perform preventive maintenance checks and services on assigned vehicles; and install, operate and perform preventive maintenance checks and services on power generators in garrison and the field environment.

9.  The commander stated that the applicant was a good Soldier and that her physical condition created a burden for others in her section and adversely impacted the unit readiness.  He highly recommended that she be considered unfit for reasonable performance of her duties as a Signal Support Systems Specialist.

10.  On 4 May 2004, a narrative summary was prepared based upon a physical examination performed by her attending physician on 15 April 2004.  The physician diagnosed the applicant as having left ankle pain, chronic low back pain, bilateral hip pain, and a history of multiple stress fractures of the ankles and feet.  He recommended that she appear before the PEB for determination of fitness for 
duty as she failed to meet retention standards in accordance with Army Regulation 40-501, chapter 3, paragraph 3-41e.

11.  The applicant was issued a temporary profile of 113111, on 12 May 2004, due to left ankle pain.  Her profile assignment limitations included exertional activity at her own pace and distance with no APFT.
12.  On 13 May 2004, the applicant's case was considered by an MEB.  The MEB diagnosed the applicant as having chronic left ankle pain, slight/intermittent.  Her ailment was ruled to have been incurred in line of duty (LOD), while she was entitled to base pay, and did not exist prior to service (EPTS).  

13.  The applicant indicated that she agreed with the MEB's findings and that she did not desire to continue on active duty.  The findings and recommendations were approved on 14 May 2004 and she was referred to a PEB.  The applicant concurred on 26 May 2004.  

14.  On 1 June 2004, the applicant appeared before an informal PEB.  She was diagnosed with chronic left ankle pain, rated slight/intermittent.  The PEB stated that based on a review of the objective medical evidence of record, it found the applicant's medical and physical impairment prevented reasonable performance of duties required by her grade and MOS.  The PEB found the applicant physically unfit and recommended a rating of 0 percent and separation with severance pay.  The PEB indicated the applicant’s separation 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 incurred in the LOD during a period of war as defined by law.  The PEB also indicated that the applicant's disability did not result from a combat related injury.  The applicant concurred with the results of the PEB and waived a formal hearing of her case on 7 June 2004.

15.  The applicant was honorably discharged on 14 July 2004, under the provisions of Army Regulation 635-40, paragraph 4-24b(3), disability with severance pay, in pay grade E-1.  Her DD Form 214 shows she completed 1 year, 2 months, and 21 days of net active duty.  Item 18 (Remarks) of her DD Form 214 states that she was paid severance pay in the amount of $2,386.80. 

16.  The applicant provides a copy of her VA Rating Decision, dated 17 February 2006, which shows that she was granted a 20 percent service connected disability for residual, left ankle, Achilles tendonitis with laxity (claimed as left ankle pain and numbness) and 10 percent for lumbosacral strain (claimed as low back pain) for a combined rating of 30 percent, effective 15 July 2004.  She was also evaluated for a chronic bilateral hip condition (also claimed as right hip pain) and shin splint, left  and right lower leg (claimed as bilateral shin splints, stress fractures, left tibial stress fracture) which were non service connected conditions and were not subject to compensation.



17.  On 28 April 2006, after her discharge, the applicant underwent surgery, at a civilian hospital.  Her preoperative diagnoses were chronic left ankle pain and chronic left ankle pain instability.  Her postoperative diagnoses were the same as her preoperative diagnoses and included a diagnosis of complete rupture of the anterior talofibular ligament and calcaneofibular ligament with a loose body lateral ankle joint gutter. 

18.  On 17 August 2006, the applicant underwent surgery once again at a civilian hospital.  Her preoperative diagnoses were pelvic pain, bilateral multicystic ovaries.  Her postoperative diagnoses were the same as her preoperative diagnoses but included an added diagnoses of pelvic endometriosis.

19.  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.

20.  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.

21.  Army Regulation 635-40, paragraph 3-5d, states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Any non-ratable defects or conditions will be listed in item 8 of the PEB Proceedings, but will be annotated as non-ratable.

22.  Paragraph 4-24 of Army Regulation 635-40 pertains to disposition by the Total Army Personnel Command (PERSCOM) upon the final decision of the Physical Disability Agency (PDA).  It states that PERSCOM will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the United States Army Physical Disability Agency (USADPA) for clarification or reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and recommendations.  Subparagraph 4-24b(3) applies to separation for physical disability with severance pay.  Subparagraph 4-24b(2) applies to placement on the TDRL.

23.  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. 

24.  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.

25.  Department of Defense Directive (DoDD) 1332.18, Part 6, TDRL Management, states that service members shall be placed on the TDRL when they would be qualified for permanent disability retirement but for the fact that the member’s disability is not determined to be of a permanent nature and stable.

26.  DoDD 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.

27.  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.



28.  Title 38, United States Code, sections 310 and 331, permits the 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 employability.  

29.  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.  Confusion arises from the fact that different rating systems are used by the Army and the VA.  While both use the Veterans Administration Schedule for Rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was treated and diagnosed as having pelvic inflammatory disease and lower back pain.  She was issued a permanent profile of 113111 due to left ankle pain.  She appeared before an MEB which diagnosed her as having chronic left ankle pain, slight/intermittent.  Her condition was determined to have been incurred in the LOD, while entitled to base pay, not EPTS.  She agreed with the findings of the MEB and indicated that she did not desire to continue on active duty.  She was referred to a PEB. 

2.  The PEB found the applicant unfit for military duty in accordance with the regulation and recommended a combined rating of 0 percent and that she be separated with severance pay. The PEB found that her medical and physical impairment prevented reasonable performance of duties required by her grade and MOS.  She conconcurred with the results of the MEB and PEB and waived a formal hearing of her case. 

3.  The applicant was discharged under the provisions of Army Regulation     635-40, paragraph 4-24b(3), disability with severance pay.  She was paid disability severance pay in the amount of $2,386.80.  

4.  The applicant was initially awarded a 10 percent service-connected disability rating by the VA but, based on her disagreement and additional review, her disability rating was increased to 30 percent. 

5.  The applicant’s VA rating does not indicate that her rating by the Army is in error.  

6.  While it is understandable that the applicant believes that every medical condition she was diagnosed with while on active duty should be rated by the Army, as the VA did, the Army only awards ratings on conditions that end a Soldier’s military career.

7.  Counsel argues that the applicant’s honorable discharge, by reason of physical disability, with severance pay, should be changed to show that she was placed on the TDRL or the Retired List, by reason of physical disability, as deemed appropriate with a combined disability rating of 30 percent or a rating that the Board feels more appropriately reflects the facts of her case.  

8.  The evidence shows the applicant underwent surgery after her discharge, for conditions that she thought should have been included in her board package for consideration in her PEB proceedings.  However, the evidence shows that she concurred and accepted the results of the PEB regarding the extent of her injury and consented to the final action being taken in her case.

9.  Counsel states that had the applicant known the extent of her injuries she would have preceded through the full range of rights and remedies available to her through the PEB system.   

10.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, 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

___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




ABCMR Record of Proceedings (cont)                                         AR20070015896



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