IN THE CASE OF:	  

		BOARD DATE:	        13 NOVEMBER 2008

		DOCKET NUMBER:  AR20080013150 


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 his records be corrected to show that he was placed on the Retired List for physical unfitness.

2.  The applicant states, in effect, that his final physical evaluation board's (PEB's) findings and recommendation were inconsistent with his first two Temporary Disability Retired List (TDRL) PEB's findings and recommendations.  He points out that his final PEB was held at an Air Force base and that he has been granted Social Security disability compensation.

3.  The applicant provides an internet article on disability ratings; excerpts from his military records; and documents showing he has been awarded Social Security disability compensation.

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 records show that while a reservist serving as a cargo specialist in pay grade E-5, he entered extended active duty on 9 September 1996.

3.  On 15 September 1999, the applicant was honorably released from active duty and placed on the TDRL the following day, rated 40 percent disabled.

4.  On 14 February 2003, a periodic TDRL reevaluation was completed which noted that the applicant complained of mild fatigue and decreased energy and he had discontinued his Interferon treatment.  His hepatitis B was resolved.  During this reevaluation the applicant's left shoulder, hips, and joints were also examined.  He was given a diagnosis of hepatitis C, tendinitis of the left shoulder, degenerative joint disease of the hips, and early degenerative changes of the left knee.  The applicant concurred with those findings.

5.  On 25 March 2003, an informal PEB found the applicant unfit for joint pain, slight and constant, rated 10 percent disabling, and for hepatitis, rated zero percent disabling, for a combined rating of 10 percent.  The PEB recommended that the applicant be discharged with severance pay.

6.  The applicant non-concurred and demanded a formal hearing.  On 7 May 2003, a formal PEB also found the applicant to be unfit for joint pain, rated 10 percent disabling, but increased his hepatitis rating to 10 percent.  The applicant again non-concurred and provided some statements regarding the status of his hepatitis in 2001.  The applicant's rebuttal was considered, but the findings and recommendation of the formal PEB were affirmed.  As such, the applicant was removed from the TDRL on 23 June 2003, rated 20 percent disabled, and discharged with severance pay.

7.  In the processing of this case an advisory opinion was obtained from the Physical Disability Agency (PDA).  The PDA chronicled the events which transpired in the applicant's case and added that in order to be rated higher than 10 percent for hepatitis C, Veterans Administration Schedule for Rating Disabilities (VASRD) code 7354 states that a person must have daily fatigue, malaise and anorexia requiring dietary restriction or continuous medication, or having incapacitating episodes (with symptoms of fatigue, malaise, nausea, vomiting, anorexia, arthralgia and right upper quadrant pain) for at least 
2 weeks.  The PDA points out that the applicant did not have anorexia (he weighed 202 in 2003 and 191 in 2000) and did not have any documented incapacitating episodes lasting at least 2 weeks manifested by symptoms noted in the VASRD.  The PDA continues that the applicant did not meet any of the criteria for separate ratings for loss of motion, nerve dysfunction, or muscle loss/damage.  As such, the PDA concludes that the applicant was properly rated at 10 percent (sic).

8.  The applicant was provided a copy of the advisory opinion and provided a rebuttal.  In that rebuttal he states that since his medical condition did not improve while he was on the TDRL, the only reason his disability rating was decreased was because his last PEB was held at an Air Force base.  He cites the fact that two PEBs which were conducted at Army posts while he was on the TDRL found no change in his disability rating.  The applicant reemphasizes that he has been awarded Social Security disability compensation for the same conditions, and says a physician now believes that his shoulder pain was misdiagnosed by the Army, that he may actually have nerve damage along with the bursitis.  The applicant explains that hepatitis C is rarely cleared from a person's body once contracted, and how his conditions have now caused him to develop a psychiatric disorder.

9.  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.

10.  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.

11.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-5c, states that the fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness.  An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty.

12.  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.
DISCUSSION AND CONCLUSIONS:

1.  In order to grant the applicant's request, he would have to show that either he was improperly rated (percentage) for his two rated conditions, joint pain and hepatitis, or he would have to show that he was physically unfit due to an additional medical condition which was medically disqualifying and physically unfitting at the time of his separation from active duty.  

2.  While the applicant has stated that his medical conditions had not changed from the date he was placed on the TDRL, he himself reported his hepatitis symptoms as mild fatigue and decreased energy.  In addition, the applicant had discontinued his Interferon treatment.  As such, his hepatitis had improved since his placement on the TDRL.  The applicant's reported symptoms did not meet the VASRD criteria for a rating higher than 10 percent.

3.  The applicant's other rated medical condition was joint pain.  While the applicant argues that it was an improper diagnosis, he has not submitted any documentation to substantiate his contention.  

4.  As such, there is no basis for changing the ratings assigned by the applicant's final PEB or to rate him for any additional conditions.

5.  The fact that two previous PEBs conducted while the applicant was on the TDRL found no change in his rating has no bearing on the fact that his final PEB found his condition to have improved.  The entire concept of the TDRL is to place a Soldier in a temporary disability status to allow for the medical condition to stabilize.  In the applicant's case, his conditions improved and stabilized, which resulted in him being assigned a reduced disability rating.  This is not uncommon and it is not unjust.

6.  The fact that the Social Security Administration granted the applicant disability compensation has no bearing on this case.  Social Security is not required to make a finding of physical unfitness to perform military duties when it grants disability compensation.

7.  While it is understandable that the applicant would like his records to be corrected to show that he was placed on the Retired List for physical unfitness, there is no basis for making such a correction.





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.




      _______ _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)                                         AR20080013150



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ABCMR Record of Proceedings (cont)                                         AR20080013150



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