IN THE CASE OF:	  

		BOARD DATE:	  12 November 2008

		DOCKET NUMBER:  AR20080010761 


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, that the 30 percent (%) disability rating assigned by the Physical Evaluation Board (PEB) be reinstated and that his record be corrected to show he was medically retired.  

2.  The applicant states, in effect, after serving in the active Army and Reserve Component for more than 15 years, he was retired due to injuries related to parachute duty.  He claims he initially received a 30% disability rating from the PEB and began his out-processing for medical retirement; however, during his processing, he received a call from his PEB liaison officer (PEBLO) who informed him of a change in his status.  He states that he signed another PEB form that lowered his disability rating, but no reason was ever given for the lower rating.  He states he was never counseled on how this would impact his retirement and he was told he would receive retirement pay after severance pay was paid back. He claims this change was unjust as it was done at a point that left him little options.  He indicates that today he suffers from chronic ankle instability and pain.  He states he cannot walk or stand for any periods over a few minutes and cannot drive a car for any periods of time.  He requests the original PEB finding be reinstated and that he receive the retirement he believes he earned.

3.  The applicant provides a copy of the original PEB Proceedings (DA Form 199), dated 14 March 2002, in support of his 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.  The applicant's record shows that he enlisted in the Regular Army and entered active duty in an enlisted status on 6 March 1991 and served until being honorably discharged on 19 May 1994 for the purpose of being ordered to active duty as a commissioned officer.  

3.  On 20 May 1994, the applicant was appointed a second lieutenant in the United States Army Reserve (USAR) and entered active duty in that status.  On
1 June 1998 he was promoted to captain, which is the highest rank he attained while serving on active duty.   

4.  On 2 March 2002, a Medical Evaluation Board (MEB) convened at Fort Huachuca, Arizona, to consider the applicant's case.  The MEB referred the applicant’s case to a PEB based on the following diagnosed conditions: unstable ankles right greater than left; status post right ankle lateral collateral ligamentous; and reconstruction brostrom procedure.  

5.  On 14 March 2002, a PEB convened at Fort Lewis, Washington, to consider the applicant's case.  The PEB found the applicant was unfit due to status post ankle sprains, apparent onset from a hard parachute landing (November 1994); ankle instability, right worse than left; failed brostrom repair, right ankle.  The PEB recommended a 30% disability rating and the applicant's permanent disability retirement.  

6.  On 13 April 2002, subsequent to its review of the applicant’s case, the United States Army Physical Disability Agency (USAPDA) modified the applicant’s PEB findings, rating and disposition.  The USAPDA confirmed the fact the applicant was unfit for further service based on pain in both ankles, right worse than left, and revised the disability rating to 20%.  

7.  The revised PEB Proceedings (DA Form 18) issued by the USAPDA contained the following reason explanation to the applicant for the modification to the original PEB findings and recommendations:  “Your limitation of motion is due to pain in both ankles.  VASRD [Veterans Administration Schedule for Rated Disabilities] 5262 is not an appropriate rating code for your ankle problems.  Your chief complaint is pain and there are no nonunion or malunions regarding your ankles.  No VASRD codes regarding ankles is appropriate.  AR 535-40, B-29e states, “…joint pain resulting in loss of motion does not constitute a mechanical basis for restricted motion.”  Thus, to rate using VASRD 5271, based on restricted motion, would also be contrary to regulations.  Therefore, this Agency changes your disposition to separate with severance pay.”  The USAPDA finally revised the disability rating to 20% and recommended the applicant’s separation with severance pay.  

8.  On 4 April 2002, the applicant agreed with the USAPDA medication and the PEB's findings and recommendation were approved on behalf of the Secretary of the Army.  

9.  On 30 April 2002, the applicant was honorably discharged in the rank of CPT under the provisions of paragraph 4-24b(3), Army Regulation 635-40, by reason of disability with severance pay.  The separation document (DD Form 214) he was issued at the time shows he completed a total of 15 years, 10 months, and 18 days of active military service and that he received $110,808.00 in severance pay in conjunction with his discharge.

10.  In connection with the processing of this case, an advisory opinion was obtained from the USAPDA Legal Advisor on 4 September 2008.  This official states that on 22 March 2002 the USAPDA finished its review of the applicant’s case, and on 2 April 2002 recommended the PEB’s findings in the applicant’s case be reduced to 20% and that the applicant be separated with severance pay. He further states that on 4 April 2002, the USAPDA modified the PEB findings and sent a copy of the new findings to the applicant.  These new findings included the reason that the PEB’s findings had to be changed, and after reviewing the findings, the applicant concurred with the USAPDA revised findings and recommendations and waived his right to a formal hearing.

11.  The USAPDA Legal Advisor further states that the applicant was fully informed and properly counseled on his rights concerning the 4 April 2002 modification of his PEB findings.  He further indicates the new findings provided a clear rationale of why the change was required, and why the rating was properly established as 20%.  He further states that the applicant has failed to provide evidence as to how the 20% rating is incorrect.  


12.  The USAPDA Legal Advisor concludes by stating that the USAPDA findings were supported by a preponderance of the evidence, were not arbitrary or capricious, were not in violation of any statute, directive, or regulation, and was authorized by the governing regulation, and that he recommends no change to the applicant’s record.  

13.  On 17 September 2008, the applicant responded to the USAPDA advisory opinion.  He states, in effect, that his character of service was exceptional and when his physical conditions declined it was obvious he would not be able to continue his service.  He states he received a 30% disability rating on 14 March 2002 and received orders and began processing for retirement.  On 4 April 2002 he was notified his disability rating was changed to 20% and he received a new set of orders and signed the revised PEB proceedings.  He claims the document he signed did not include a change to the disability rating and he was never counseled or instructed at anytime that this changed his retirement eligibility.  

14.  In his advisory opinion rebuttal the applicant further states that after receiving notice that he would be recommended for separation due to his physical condition he was instructed to be evaluated by the Department of Veterans Affairs (VA).  He claims the VA findings supported the original PEB findings and assigned a disability rating of 30%.  He states that subsequent to his separation he tried on numerous occasions to contact his PEBLO and was told she no longer worked in that capacity.  He claims he also contacted the VA, Department of Defense (DOD), and the Defense Finance and Accounting Service (DFAS) on numerous occasions.  He states he could not believe that an organization he had committed himself to and served so selflessly allowed this to occur.  He states that he disagrees with the comments in the USAPDA advisory opinion that indicate he was counseled and fully informed of the modification of the PEB’s findings.  The applicant provides the following documents with this advisory opinion rebuttal:  Separation Orders; DA Form 199, dated 14 March 2002; Commander's Performance Statement; VA Rating Decision, dated 14 May 2002; ABCMR Letter, dated 8 September 2008; and Officer Evaluation Reports (OERs). 

15.  The VA Rating Decision provided by the applicant shows the VA granted service connection to the applicant for the following medical conditions and assigned disability ratings indicated:  ligamentous laxity with degenerative changes, right ankle (20%); ligamentous laxity, left ankle (10%); and hypertension (0%).  


16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth the 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; and provides for the disposition of a Soldier is found unfit because of physical disability according to applicable laws and regulations.

17.  Section V of the disability regulation provides guidance on the review and confirmation of PEB actions.  Paragraph 4-22 contains guidance on review by the USAPDA.  It states, in pertinent part, that the USAPDA may issue revised findings providing for a change in disposition of the Soldier or change in the Soldier's disability rating.  It further states that the USAPDA will take the following actions when modifying PEB findings and recommendation:  furnish the Soldier a copy of the revision with the reason for change explained;  advise the Soldier that his or her election or rebuttal to the revision must be received by the USAPDA within 10 days from the Soldier's receipt of the revised findings unless a request for extension is received and approved within the same time frame; and/or return the case records to the PEB if the Soldier is eligible for and requests a formal hearing.  It further states that if the Soldier concurs with the revised findings and recommendation, USAPDA will approve the case for the Secretary of the Army and forward the case for final disposition.  

18.  Title 38, United States Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was never informed of the impact the revised findings and recommendation from the USAPDA had on his retirement and that his record should be corrected to reinstate the original 30% disability rating assigned by the PEB and to show he was retired by reason of permanent disability was carefully considered.  However, there is insufficient evidence to support this claim.  
2.  The evidence of record confirms the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met, and the applicant's rights were fully protected throughout the PDES process.  It further shows that subsequent to the findings and recommendation of an informal PEB completed on the applicant that resulted in a recommended 30% disability rating and a recommendation for permanent disability retirement, the USAPDA acting within its regulatory purview, revised the findings and recommendation of the PEB to a recommended 20% disability rating and separation with severance pay.  

3.  Contrary to the applicant’s assertion that he was never informed of the modified findings and recommendation of the USAPDA the evidence of record contains a DA Form 18 that contains the applicant’s concurrence in Item 13 (Election of Soldier).  The applicant acknowledged that he had been advised of the findings and recommendation of the PEB as modified and that he had received a full explanation of the reasons for the findings and recommendation and legal rights pertaining thereto.  Item 13 also shows he agreed with the USAPDA's modification and that he did not demand a formal hearing.  He authenticated this election with his signature on 4 April 2002.  

4.  The PEBLO also authenticated the DA Form 18 with her signature in Item 14 (Counselor’s Statement).  In Item 14, she attested to the fact she had informed the applicant of the findings and recommendation of the PEB as modified by the USAPDA and that she explained to the applicant the result of the findings and recommendation and his legal rights pertaining thereto.  She also confirmed that the applicant had made the elections shown in Item 13.  Absent any documentary evidence to the contrary, this document carries a presumption of regularity, and it must be presumed that the applicant was properly counseled on the reason for the USAPDA modifications and that he agreed with the changes as indicated on the DA Form 18.  

5.  The evidence also confirms the VA awarded the applicant a 30% disability rating for his right and left ankle conditions.  However, while both the Army and the VA use the VASRD, not all of the general policy provisions set forth in the VASRD apply to the Army.  The VA may rate any service-connected impairment, thus compensating for loss of civilian employment.  It may also award compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  It can also evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, any change in the disability rating granted by the VA would not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.  
6.  The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  As a result, it is concluded that the applicant was properly compensated with severance pay at the time of his discharge based on the findings and recommendation of the PEB as modified by the USAPDA, and that he is now properly being rated, treated, and compensated for all his service-connected conditions by the VA.  

7.  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)                                         AR20080010761



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ABCMR Record of Proceedings (cont)                                         AR20080010761


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