IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080013826 


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, medical retirement.

2.  The applicant states that he had over 7 years of active duty service and a disability rating of well over 20 percent.  He believes that he was quickly reassigned out of the 82nd Airborne and rushed out of the Army because he had a permanent profile and was non-deployable.  He knows he was not given the right counseling and support from his chain of command.  He was just shuffled around like a bad headache no one wanted to deal with.

3.  The applicant did not provide additional documentary evidence 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.  The evidence of record shows the applicant had a prior period of honorable service from 2 June 1992 through 8 February 1995.  He was released from active duty under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 13, by reason of unsatisfactory performance.

3.  On 2 July 1997, the applicant enlisted in the Regular Army as a private first class/E-3 for a period of 5 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 31F (Network Switching Systems Operator-Maintainer).  He attained the grade of specialist/E-4.  He was awarded the National Defense Service Medal, the Army Service Ribbon, the Parachutist Badge, the Air Assault Badge, and the Driver and Mechanic Badge with Driver-W Bar.

4.  The applicant's service medal records (SMRs) were not available for review.  A review of the available medical evidence maintained on the Integrated Personnel Electronic Records Management System (iPERMS) shows that the applicant injured his right shoulder blade, rotator cup and collar bone during a parachute landing fall on 30 September 1998.  On 12 February 1999, he underwent surgery for a superomedial border excision of the right scapula.  On
2 August 1999, the applicant's unit commander indicated in a memorandum for the President of the Physical Evaluation Board (PEB) that the applicant's medical condition prevented him from performing his duties in the field.  He indicated the applicant could not do any lifting of weight with his right arm, that he was unable to run, jump, do pushups or sit-ups, wear load-bearing equipment, or carry a rifle and drive due to his medications.  He was also unable to perform his duties in the S1 because he could not type.

5.  On 15 September 1999, the applicant underwent a Medical Evaluation Board (MEB).  On examination the applicant complained of neck and low back pain, frequent trouble sleeping due to his pain, and that he was anxious concerning his injury, continued pain, and future in the Army.  The MEB found his condition of post-traumatic right shoulder pain and reflex sympathetic dystrophy, right shoulder, mild, medically unacceptable and recommended that his medical conditions be referred to a PEB. 

6.  On 28 September 1999, the applicant concurred with the MEB's findings.

7.  On 19 October 1999, the U.S. Army PEB, Walter Reed Army Medical Center (WRAMC), returned the applicant's disability case to Fort Bragg and requested additional action.  It requested a complete back examination to include ranges of motion and/or any evidence of tenderness and muscle spasms; a report of the results of a neurological examination; and whether the applicant's back pain was medically acceptable or not.  
8.  On 7 December 1999, the MEB at Fort Bragg provided the WRAMC PEB an addendum to the previous MEB.  It indicated that the applicant does have some low back pain but it is primarily related to his difficulty sleeping at night from his upper back pain.  The applicant stated that his lower back pain was not a significant problem for him.  His lower extremity examination was normal with motor examination of 5/5 in both lower extremities and straight-leg-raises to 
90-degrees bilaterally.  There was no spasm present in the lumbar spine and no tenderness to palpation.  He had forward flexion to 90 degrees and extension to 10 degrees, normal side bending and twisting.  His back pain was medically unacceptable.  The applicant concurred with the addendum.

9.  On 10 January 2000, the applicant underwent an informal PEB which found him unfit due to post-traumatic right (dominant) shoulder pain with reflex sympathetic dystrophy, right, rated 20 percent disabling.  Based on a review of the medical evidence of record, the PEB concluded that his medical condition prevented reasonable performance of his duty in his grade and specialty.  Because he was rated less than 30 percent disabled and had less than 20 years of active service, his condition required separation with severance pay in lieu of retirement.  His back condition was not found unfitting.  

10.  On 19 January 2000, the applicant concurred with the PEB's findings and waived a formal hearing of his case.  On 19 January 2000, the applicant also executed a DA Form 5893-R (PEBLO (PEB Liaison Officer) Counseling Checklist/Statement) documenting that he was counseled on his MEB and MEB narrative summary; his appeal procedures and his option to submit more medical evidence; and the procedures for requesting continuance on active duty or in the Active Reserve.  The applicant was also counseled on the course of the disability processing through the PEB; the PEB findings and his appeal procedures and his option to submit additional medical evidence; the difference between disability retirement and severance pay; his right to a formal PEB hearing with representation and witnesses; and the U.S. Army Physical Disability Agency (USAPDA) review process and his right to rebut the findings with additional medical evidence.

11.  On 4 May 2000, the applicant was discharged by reason of disability with severance pay under the provisions of Army Regulation 635-40, paragraph
4-24b(3).  He was credited with 5 years, 6 months, and 8 days of active Federal service and received $18,680.40 in severance pay.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system and 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which 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 qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Physical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

13.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was entitled to disability retirement because his shoulder condition should have been rated as more than 20 percent disabling.  The applicant's SMRs were not available for review and he did not provide a copy of his SMRs with his application.  He also did not provide any additional medical evidence to show that his shoulder condition should have been rated higher than 20 percent disabling.  The available medical evidence (MEB and PEB) supports the determination that the applicant's unfitting shoulder condition was properly diagnosed and his disability was properly rated by the PEB.  His separation with severance pay was in compliance with law and regulations.  Further, he concurred with the findings of both the MEB and PEB.  He now contends that his PEB did not assign the correct disability rating, however, he provides no medical evidence in support of this contention. 

2.  The applicant's contention that he was not given the right counseling or support by the command is without merit.  Based on the available evidence, it appears that his rights were fully protected during the disability process.  He authenticated a PEBLO Counseling Checklist/Statement indicating that he was counseled regarding all of his rights concerning the disability process, to include his right to request continuance on active duty, and his right to appeal any board action with additional medical evidence.  He did not elect to appeal any of the findings of the MEB, PEB, or USAPDA.

3.  Given the above, the applicant has failed to provide sufficient evidence to show he was entitled to medical retirement.  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 any 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.



      ________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)                                         AR20080013826



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ABCMR Record of Proceedings (cont)                                         AR20080013826



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