IN THE CASE OF:	  

		BOARD DATE:	        18 February 2009

		DOCKET NUMBER:  AR20080004352 


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 that he be medically retired and placed on Temporary Disability Retired List (TDRL).  

2.  The applicant states, in effect, the Physical Evaluation Board did not comply with Department of Defense directives and inappropriately medically discharged him.

3.  The applicant provides a DA Form 3947 (Medical Evaluation Board Proceedings), a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), a DD Form 214 (Certificate of Release or Discharge from Active Duty), a statement from the Texas Veterans Commission, Department of Veterans Affairs (DVA) rating decisions, and service medical records in support of this application.

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.  After having had prior service in the U.S. Marine Corps, the applicant enlisted in the U.S. Army on 2 August 1984 and served in the U.S. Army Reserve and the Army National Guard throughout a series of reenlistments until his separation on 15 March 2004.

3.  On 1 December 2003, the applicant underwent a Medical Evaluation Board (MEB) which diagnosed him with multilevel lumbar degenerative disk disease.  This MEB referred the applicant to a PEB to determine if he met military medical standards for retention.

4.  On 12 January 2004, the applicant concurred with the findings of the MEB and stated he did not desire to continue on active duty.

5.  On 14 January 2004, a PEB found the applicant unfit due to chronic back pain due to degenerative disk disease, without neurologic abnormality, forward thoracolumbar flexion 55 degrees.  He was recommended for separation with severance pay with a 20 percent disability rating.

6.  On 15 January 2004, the applicant concurred with the findings of the PEB and waived a formal hearing of his case.

7.  On 15 March 2004, the applicant was separated in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The applicant was provided $33,150.60 in disability severance pay.

8.  The DVA awarded the applicant service connection for lumbar degenerative disk disease (40 percent) effective 9 September 2004. 

9.  On 19 July 2006, the DVA awarded the applicant additional service connection for tinnitus (10 percent).

10.  The applicant provided a statement from the Texas Veterans Commission which essentially states the Army did not comply with DOD directives because it did not address the bilateral knees and ankles secondary to the lumbar degenerative disk disease and that the applicant should have been medically retired with a rating of 40 percent.



11.  In the processing of this case an advisory opinion was obtained from the     U. S. Army Physical Disability Agency (PDA).  That agency stated the applicant was rated for his back condition and there were no other conditions which did not meet medical retention standards for the PEB to consider.  The PDA also stated the applicant did not provide any evidence of any PEB error which materially affected his ability to receive a full and fair hearing.  Additionally, the PDA recommended denial of his application.

12.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

13.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

14.  Paragraph 3–9 of Army Regulation 635-40 provides guidance for the TDRL.  Specifically it states that the TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  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 Title 10, U.S. Code, Section 1208, (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and determined to be without merit.  The applicant's medical records do not contain any information which supports his request for a medical retirement.

2.  The applicant was appropriately evaluated by both a MEB and a PEB prior to his discharge.  The applicant concurred with the findings of the PEB and stated he did not desire to continue on active duty.

3.  Records show the applicant was separated for an unfitting medical condition, however, this condition only warranted a 20 percent disability rating.  As a result, he is not eligible for placement on the TDRL or for medical retirement.

4.  Absent evidence to show the applicant's medical separation was in error or unjust, there is no basis to amend the record as requested.

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)                                         AR20080004352



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ABCMR Record of Proceedings (cont)                                         AR20080004352



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