IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080007984 


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, the U.S. Army grant him a disability rating of 100 percent for his service-connected disability.

2.  The applicant states, in effect, the U.S. Army granted him a disability rating of 30 percent for mental health reasons (Manic Depression-Bipolar Affective Disorder) and placed him on the Temporary Disability Retired List (TDRL) in October 1989.  The applicant adds that approximately 1 year later, he was removed from the TDRL and placed on the permanent retired list with a disability rating of 50 percent for both mental health and orthopedic reasons.

     a.  The applicant states, in effect, that prior to being placed on the TDRL he was locked-in and housed in the Fort Leonard Wood Army Hospital Psychiatric Ward for 7 months and, although he received full pay and allowances, he was not allowed any communications with the outside.  He also states that the concerns he expressed were deemed secondary to the severity of his manic depressive behavior.  His treatment by hospital staff was unkind, they were unconcerned, and the ordeal left him traumatized.  The psychiatric and orthopedic medical staff failed to properly and thoroughly complete the evaluation process (twice) and the outcome of the physical disability evaluation process led to his ruination and total mental and physical disability.

     b.  The applicant states, in effect, that he was heavily drugged by the military psychiatrist at the time and all other potential evaluations for orthopedic (bone and joint) injuries were neglected, minimized, and not evaluated until just before the final order placing him on the permanent retired list.  He adds that only 
one psychiatrist and one orthopedic surgeon were present at the final examination.  He also states there were no x-rays or MRI and his final examination was a quick determination by the physician using only his hands.  He adds that as a mental health-diseased individual, he had no rights to complain or to ask for any further consideration.  

     c.  The applicant states that being dropped into the civilian environment immediately after this without any form of livelihood, no transportation, and little funds increased the trauma and stress leading to his continued and deepened manic behavior.  He also states the evaluations of manic depression and orthopedic injuries should not have led to divorce, bankruptcy, the loss of his visitation rights to ever see his 2 children, loss of any type of military or civilian livelihood, and loss of hope of being a normal human being in society.  

     d.  The applicant states that the orthopedic surgeon he has seen for the past 10 years and the fact that the Social Security Administration granted him a full 100 percent disability in January 1991 verifies his condition and subsequent need for chronic pain medication.  He also states that he was further diagnosed with prolonged Post-Traumatic Stress Disorder (PTSD) with pain and dysphoria due to the ordeal he suffered and adds that this was not properly evaluated by the military medical staff.

     e.  The applicant concludes by stating he has not had the courage to attempt to correct this injustice until just recently because he was afraid to explain “just how bad it could get.”  He adds that he wants to try and do his very best to make things right in hopes that the outcome will be worth it.

3.  The applicant provides his self-authored statement, dated 16 April 2008; Headquarters, U.S. Total Army Personnel Command, Alexandria, Virginia, Orders D179-10, dated 14 September 1989; Headquarters, U.S. Total Army Personnel Command, Alexandria, Virginia, Orders D167-9, dated 23 August 1990; Atlantis Orthopaedics, Atlantis, Florida, letter, dated 5 November 2007; and Social Security Administration, Claim Number 4##-5#-7###A, dated 8 April 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.  The applicant’s military service records show he enlisted in the Army National Guard (ARNG) of the United States on 21 July 1972 and was honorably discharged on 29 February 1976 for appointment as a commissioned officer in the ARNG on 1 March 1976.  Upon completion of the basic officer course, he was awarded military specialty 13A (Field Artillery).

3.  The applicant's records contain a copy of a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 9 May 1989.  This document describes the applicant’s disability as “[m]anic depressive illness, manifested by ideas of reference, increased psycho-motor activity, suspiciousness, tangentiality, and circumstantiality.”  This document shows Medical Evaluation Board (MEB) diagnoses 2 through 4 “not disabling, not rated.”  This document further shows that based on a review of the objective medical record of evidence, the PEB found the applicant’s medical and physical impairment, associated with restrictive profile limitations, prevented reasonable performance of duties required by grade and military specialty, and that the applicant’s condition was not sufficiently stable for final adjudication.  The PEB found the applicant physically unfit and recommended a combined rating of 30 percent, and that the applicant be placed on the TDRL with reexamination during May 1990.  Item 13 (Election of Member) of the DA Form 199 shows the applicant acknowledged he had been advised of the findings and recommendations of the PEB, he had received a full explanation of the results of the findings and recommendations and his legal rights pertaining thereto, and that he concurred and waived a formal hearing of his case.  This item also shows the applicant placed his signature on the document.  Item 14 (Counselor’s Statement) shows that the PEB Liaison Officer (PEBLO) certified she informed the applicant of the findings and recommendations of the PEB, explained to him the results of the findings and recommendations and his legal rights pertaining thereto, and certified that the applicant made the elections shown in Item 13.

4.  The applicant's military service records contain a copy of Headquarters,
U.S. Total Army Personnel Center, Alexandria, Virginia, Orders D179-10, dated 14 September 1989.  These orders shows that the applicant was relieved from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions which permitted his placement in the TDRL.  These orders also show the effective date of retirement was 5 October 1989 and that he was placed on the TDRL on 6 October 1989, in the rank of Major (MAJ)/ pay grade O-4, with a disability rating of 30 percent.

5.  The applicant's military service records contain copies of Headquarters, U.S. Total Army Personnel Center, Alexandria, Virginia, memorandum, dated 19 April 1990, subject:  Periodic Medical Examination (TDRL), and Headquarters, U.S. Total Army Personnel Center, Alexandria, Virginia, Letter Orders D-05-186, dated 19 April 1990, subject:  TDRL Physical Evaluation.  This documentation shows the applicant was notified of his attachment to Wood Army Community Hospital, Fort Leonard Wood, Missouri, effective June 1990, for the purpose of a periodic physical examination.

6.  The applicant's military service records contain copies of Headquarters,
U.S. Army Medical Department Activity, Fort Leonard Wood, Missouri, memorandum, dated 25 June 1990, subject:  TDRL Physical Examination - [Applicant’s Grade, Name, and Social Security Number] and TDRL Addendum, dated 7 June 1990.  This documentation shows the applicant was provided a copy of the examination that was given to him on 7 June 1990 and requested the applicant’s reply within 5 days after receipt.  The TDRL Addendum, in pertinent part, includes diagnoses of “1.  Manic depressive illness.  Clinically severe manifested by hyperiligiosity and delusions of grandeur.  Stress minimal. Unemployed and family problems.  Predisposition:  Border line personality. Impairment for further military duty marked.  Impairment for social and industrial adaptability severe.  2.  Post traumatic pain in the right shoulder and back and post traumatic instability of the left knee with history acquired motor vehicle accident injury in 1986.  3.  Status post healed fracture of the left leg and distal tibia 1966, healed without residual.”  The TDRL Addendum also shows that the colonel serving as Deputy Commander for Clinical Services recommended, “MAJ W_____ be retained on TDRL status.  I also recommend that he be followed as an outpatient at the VA facility nearest his home.  He should return for reevaluation of his TDRL status in 1 year.”  This documentation further shows the applicant acknowledged, “I have been informed of the approved findings and recommendations and agree” and that the applicant placed his signature on the document on 1 July 1990.

7.  The applicant's military service records contain a copy of a DA Form 199, dated 25 July 1990.  This document describes the applicant’s disability as “[m]anic depressive illness, rated as considerable (Medical Board Diagnosis
1 and Narrative Summary).  This document also shows Medical Board Diagnoses 2 and 3 as “not disabling, not rated.”  This document further shows, in pertinent part, that the PEB found the applicant, “unfit though neither his shoulder nor leg are ratable.”  Based on a review of the TDRL examination, the PEB found the applicant “remains unfit to reasonably perform the duties required by previous grade and military specialty” and the applicant’s “current condition is considered sufficiently stable for final adjudication.”  The PEB found the applicant physically unfit and recommended a combined rating of 50 percent, and that the applicant’s disposition be permanent disability retirement.  

8.  The applicant's military service records contain a copy of Headquarters, U.S. Army Physical Evaluation Board, Fort Sam Houston, Texas, memorandum, dated
20 August 1990, subject:  Failure to Make an Election.  This document shows the applicant received the findings and recommendations of the informal PEB, dated 25 July 1990, as verified by a Postal Service (PS) Form 3811 (Domestic Return Receipt), dated 30 July 1990, on which the applicant acknowledged his receipt. This document also shows that, since the applicant failed to make an election within the prescribed time limits, his case was forwarded for further processing in accordance with Army Regulation 635-40, paragraph 7-20e.

9.  The DA Form 199 (PEB Proceedings), dated 25 July 1990, shows that the findings and recommendations of the PEB were approved for the Secretary of the Army on 20 August 1990.

10.  The applicant's military service records contain a copy of Headquarters,
U.S. Total Army Personnel Center, Alexandria, Virginia, Orders D167-9, dated
23 August 1990.  These orders show the applicant was removed from the TDRL on 23 August 1990 and, on the date following, he was permanently retired in the grade of Major (O-4) with a disability rating of 50 percent.

11.  In support of his application, the applicant provides the following documents.

     a.  His self-authored statement, dated 16 April 2008; Headquarters, U.S. Total Army Personnel Command, Alexandria, Virginia, Orders D179-10, dated
14 September 1989; and Headquarters, U.S. Total Army Personnel Command, Alexandria, Virginia, Orders D167-9, dated 23 August 1990.  These 3 documents were previously introduced and considered in this Record of Proceedings.

     b.  Atlantis Orthopaedics, Atlantis, Florida, letter, written by George M. B______, Medical Doctor, dated 5 November 2007.  This letter shows, in pertinent part, that the applicant has been a patient of the orthopaedic surgeon for approximately 10 years and has been treated for “impingement syndrome, rotator cuff arthropathy involving the left shoulder, torn medical menisci involving both knees, torn ACL involving the right knee and medial compartment DJD involving both knees as well as cervical DJD with cervical neck pain and spasm.” The orthopaedic surgeon also provides a brief summary of the applicant’s treatment and prognosis and concludes by stating, “[a]t this time I do believe that the patient is 100% disabled secondary to his orthopaedic injuries and chronic pain.”

     c.  Social Security Administration, Claim Number 4##-5#-7###A, dated 8 April 2008, that shows, in pertinent part, the applicant became entitled to disability in January 1991.

12.  Chapter 61, Title 10, United States Code, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (USA HRC), Alexandria, Virginia, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, 10 USC, and in accordance with Department of Defense (DoD) Directive 1332.18 and Army Regulation 635-40.  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, set 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 Army regulation, in pertinent part, provides 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.

14.  Army Regulation 635-40, paragraph 3-9 (The temporary disability retired list), in pertinent part, provides 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 Title 10, United States Code, section 1208. In addition, the condition must be determined to be temporary or unstable.

15.  Paragraph 4-10 (The Medical Evaluation Board) of Army Regulation 635-40 provides that medical evaluation boards 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.

16.  Paragraph 4-12 (Informal board) of Army Regulation 635-40 provides the procedures and disposition instructions for PEB processing.  This paragraph states, in pertinent part, if the Soldier fails or declines to make an election within the prescribed time and the PEB has not received from the PEBLO the prescribed statement, the PEB will contact the PEBLO to confirm the status of the Soldier's election.  When the PEBLO confirms the Soldier has been informed of the findings and recommendations but has not made an election, the PEB will proceed as if the Soldier has accepted the findings and recommendations.  The proceedings will be forwarded to USA HRC for final disposition. The forwarding memorandum will document the circumstances resulting in the waiver of election. The PEB will forward a copy of the memorandum to the Soldier through the PEBLO.

17.  Title 38, United States Code, sections 1110 and 1131, permit the Department of 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 civilian employability.  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.  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 VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the U.S. Army granted him a disability rating of 30 percent for mental health reasons and placed him on the TDRL and that he was later removed from the TDRL and placed on the permanent retired list with a disability rating of 50 percent for both mental health and orthopedic reasons.  The applicant also contends that his disability rating should be adjusted to 100 percent because he was not properly evaluated at the time by the military medical staff and the Social Security Administration has rated him 100 percent service-connected disabled.

2.  The evidence of record shows that the applicant was evaluated by a PEB and placed on the TDRL with a disability rating of 30 percent, effective 6 October 1989.  The evidence of record also shows that the applicant was placed on the TDRL based on a diagnosis of “manic depressive illness, manifested by ideas of reference, increased psycho-motor activity, suspiciousness, tangentiality, and circumstantiality.”

3.  The evidence of record shows that the applicant was notified of the results of his periodic TDRL examination given on 7 June 1990 and that he concurred with the findings and recommendations on 1 July 1990.  

4.  The evidence of record shows the PEB reviewed the results of the periodic TDRL examination and found that the applicant’s “manic depressive illness, rated as considerable” (i.e., 50 percent).  The PEB also found that the applicant’s “post traumatic pain in the right shoulder and back and post traumatic instability of the left knee with history acquired motor vehicle accident injury in 1986” and “status post healed fracture of the left leg and distal tibia 1966 healed without residual” as “not disabling, not rated.” In addition, the PEB determined the applicant “remains unfit to reasonably perform the duties required of his previous grade and military specialty.”  The evidence of record also shows that the PEB determined the applicant to be physically unfit for retention in the U.S. Army, recommended a disability rating of 50 percent, and the applicant’s permanent retirement from the Service.  The evidence of record further shows that the applicant acknowledged with his signature, on 30 July 1990, that he received the findings and recommendations of the informal PEB, dated 25 July 1990, but he failed to make an election within the prescribed time limits.

5.  The evidence of record shows that the applicant was subsequently removed from the TDRL, on 23 August 1990, and permanently retired with a disability rating of 50 percent.  In view of all of all of the foregoing, the evidence of record fails to support the applicant’s contention that Army psychiatric and orthopedic medical staff failed to properly and thoroughly complete the evaluation process pertaining to his medical conditions.  In this regard, the evidence of record does not support the applicant’s contention that he was placed on the permanent retired list with a disability rating of 50 percent for both mental health and orthopedic reasons (emphasis added).


6.  The evidence of record shows 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.  The VA (and some other government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other government agency), in its discretion, awarded the applicant a higher disability rating than that which he received from the U.S. Army, is a prerogative exercised within the policies of that agency.

7.  There is no evidence to show that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  Therefore, the applicant is not entitled to correction of his records to show an adjustment to his disability rating.

8.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

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)                                         AR20080007984



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ABCMR Record of Proceedings (cont)                                         AR20080007984



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