IN THE CASE OF:	  

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080005526 


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, disability retirement. 

2.  The applicant states, in effect, that the Army failed to rate all of his disabilities. He contends that the Department of Veterans Affairs (DVA) finally rated all of his disabilities last year after fighting for over 20 years, and that based on the DVA rating, the Army should have done the same.

3.  The applicant provides a copy Medical Air Evacuation Summary, dated
29 April 1986; a copy of a hospital summary, dated 13 November 1985; a copy of a DA Form 3647 (Inpatient Treatment Record Cover Sheet); and a copy of a self-authored statement, dated 4 March 2008.

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.  On 15 December 1984, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 4 January 1985, he was discharged from the DEP and enlisted in the Regular Army for 4 years.  He completed training requirements and was awarded military occupational specialty 31C (Single Channel Radio Operator).  He attained the grade of private first class/E-3.
 
3.  On 19 December 1986, the applicant was placed on the Temporary Disability Retired List (TDRL).  His service medical records (SMRs) were not available for review, to include a copy of his Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB).  On 15 May 2008, the applicant was advised to provide a copy of his MEB and PEB to support his request.  To date, he failed to respond.

4.  The applicant underwent a periodic TDRL examination in April 1990.  A copy of this evaluation and the pertinent PEB were not available for review.  However, on 18 September 1990, the applicant was removed from the TDRL and discharged from the Army.  His physical disability (unknown) was rated as
20 percent disabling and he was entitled to receipt of severance pay.  

5.  The applicant provided a copy of a hospital summary, dated 17 October 1985, for a left knee partial chronic anterior cruciate ligament injury.  On 19 October 1985, he underwent an arthroscopy of the left knee which revealed a torn anterior cruciate.  This report also indicated that he had previous injuries of the right shoulder joint in basic combat training which was diagnosed as bursitis.

6.  The applicant provided a copy of a Medical Air Evacuation Summary, dated 29 April 1986, showing that he was diagnosed with chronic left knee instability.  This report indicates that the applicant was injured while running and going off a curb.  He sustained a twisting injury to the left knee, resulting in a partial anterior cruciate ligament tear, which was attenuated, but had some fibers intact.  He continually complained of pivot-shift phenomenon on ambulating, especially ascending stairs, and repeatedly requested reconstructive procedure.  He was being treated by a psychiatrist with Sinequan, but he had discontinued use because it was too strong, causing him to go to sleep immediately at night and he was unable to wake up in the morning.  It was recommended that he be thoroughly evaluated for consideration of reconstruction of the left knee versus a MEB.

7.  The applicant provided a copy of a DA Form 3647 which shows he was discharged from the service with severance pay under the provisions of Army Regulation 635-40, paragraph 4-24e(3), with a disability rating of 20 percent.  His left knee instability was found unfitting and was rated as 20 percent disabling.  His right shoulder condition, hypertension, migraine headaches, and tobacco abuse were not considered unfitting and were not rated. 

8.  The applicant provided a self-authored statement, dated 4 March 2008, indicating that he received a 70 percent disability rating from the DVA.  The DVA rated both his right shoulder and bipolar disorder for which he received treatment while in the Army.  He did not provide a copy of his rating decision from the DVA.

9.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive (DODD) 1332.18. It 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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

10.  The objectives of the Army PDES 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.  Soldiers are referred into the PDES system when they no longer meet medical retention standards in accordance with chapter 3, AR 40-501 as evidenced in a medical evaluation board; 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 are referred by the Commander, US Army Human Resources Command (HRC).  A service member is referred to an MEB by a unit commander or a physician when it is believed that he/she may possesses one or more medical conditions that cause him/her to fail to meet retention standards.  A service member does not "apply” or self-refer for evaluation by an MEB.

	a.  Soldiers enter the PDES under the presumption they are physically fit. This is known as the Presumption of Fitness Rule which states a Soldier is presumed fit because of continued performance of military duty up to the point of separation for reasons other than physical disability.  The philosophy behind the rule is that military disability compensation is for career interruption, compensation for service-incurred conditions.

	b.  Application of the Presumption of Fitness Rule does not mandate a finding of unfit.  The presumption is overcome if the preponderance of evidence establishes the Soldier, because of disability, was physically unable to perform adequately the duties of his/her office, grade, rank or rating.  This circumstance is aimed at long-term conditions.  It may also be overcome if acute, grave illness or injury, or other deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with, processing for separation or retirement for reasons other than physical disability which rendered the Soldier unfit for further duty.  Future duty is a factor in this circumstance.

	c.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to the Physical Evaluation Board (PEB).  The PEB is required by law to determine the physical disability rating using the Veterans Schedule for Rating Disabilities (VASRD).  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:  (1) 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; and (2) 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, that is 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 another 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.

	d.  The PEB initially conducts an informal adjudication.  This is a records review of the MEB and applicable personnel documents without the Soldier present.  The informal decision is forwarded to the PEBLO for counseling of the Soldier.  If after counseling, the Soldier concurs with the findings, the case is forwarded to the US Army Physical Disability Agency (USAPDA) to accomplish disposition.  If the Soldier disagrees with the findings, he/she has the right to submit a rebuttal for reconsideration and the right to elect a formal hearing.  At the time of election for a formal hearing, the Soldier may also elect to appear or not appear, and to be represented by the regularly appointed military counsel or to have counsel of his choice at no expense to the government.  He/she may also request essential witnesses to testify in his/her behalf.

11.  Paragraph 3-1 of Army Regulation 635-40 provides that the mere presence of 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.
12.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  

13.  Congress established the VA Schedule for Rating Disabilities (VASRD) as the standard under which percentage rating decisions are to be made for disabled military personnel.  Percentage ratings in the VASRD represent the average loss in earning capacity resulting from diseases and injuries.  The ratings also represent the residual effects of these health impairments on civilian occupations.  Part 4, paragraph 4.1 of the VASRD states that the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations.

14.  Title 38, United States Code, sections 1110 and 1131, permits the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  The DVA, which has neither the authority, nor the responsibility for determining physical fitness for the military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.

15.  Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for 
loss of a career; while the DVA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a DVA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a DVA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the DVA pension and military retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's MEB and PEB were not available for review.  In the absence of medical evidence to the contrary, regularity is presumed in the applicant's discharge process.  The applicant was notified that his MEB and PEB were not contained in his official record and to provide a copy of his medical evidence to support his request for disability retirement.  The applicant failed to respond to this notification.  The ABCMR is not an investigative agency and does not have the duty to obtain evidence that may be dispositive in a case.  It is incumbent upon the applicant to provide the supporting evidence for his claim.

2.  A DA Form 3647 provided by the applicant shows that he was found unfit for a left knee condition, rated as 20 percent disabling.  It also showed that his other medical conditions – right shoulder condition, hypertension, migraine headaches, and tobacco use – were not considered unfitting and were not rated.  There is no evidence that the applicant was diagnosed with a bipolar disorder while in the Army.  Although he may have been treated for other medical conditions, there is no evidence of record showing that he could not reasonably perform the duties of his office, grade, rank due to any of these conditions.  He was only found unfit for duty for a left knee condition.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

3.  In order to establish entitlement to permanent disability retirement the applicant must show that he was found unfit for duty by an MEB/PEB and that the unfitting condition(s) is permanent and stable and rated at a minimum of
30 percent.  Only one of his medical conditions was found unfitting and it was only rated as 20 percent disabling, which entitled him to severance pay.  More than 20 years after his discharge, the DVA rated him 70 percent disabled for conditions which were not found unfitting at the time of his discharge. 

4.  The fact that the DVA, in its discretion, may have awarded the applicant benefits for a medical condition is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Army purposes. 

5.  DVA ratings do not establish entitlement to medical retirement or disability separation from the Army.  Operating under different law and its own policies and regulations, the DVA, which has neither the authority, nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service; i.e., service-connected.  Furthermore, the DVA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. 

6.  Given the above, the applicant has failed to provide sufficient evidence to support his request.   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 sufficient evidence to show that there was an error or injustice in his medical processing and/or discharge. 

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
      
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)                                         AR20080005526





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080005526



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1