IN THE CASE OF:	  

		BOARD DATE:	  23 December 2008

		DOCKET NUMBER:  AR20080015645 


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, reinstatement of his disability retirement status.   

2.  The applicant states, in effect, due to an error on his part, he failed to report for reexaminations after he was placed on the Temporary Disability Retired List (TDRL) on 5 October 2000.   

3.  The applicant provides a self-authored statement and medical records from the Department of Veterans Affairs (VA) 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 he enlisted in the Regular Army and entered active duty on 4 June 1997, and was trained in and awarded military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman).  

3.  The applicant was processed through the Army's Physical Disability Evaluation System (PDES) and was granted an 80 percent (%) disability rating by a Physical Evaluation Board (PEB) based on the loss of his left arm and two other ratings that raised his total disability rating to 90%.  

4.  The applicant's Official Military Personnel File (OMPF) contains Headquarters, Walter Reed Army Medical Center (WRAMC), Washington D.C. Orders
256-0002, dated 12 September 2000, which directed the applicant's release from active duty (REFRAD) on 5 October 2000 and his placement on the TDRL on 
6 October 2000 in the rank of specialist (SPC)/E-4.  These orders confirm the applicant received a 90% disability rating.

5.  On 5 October 2000, the applicant was REFRAD, by reason of disability, temporary.  The separation document (DD form 214) he was issued at the time shows he completed a total of 3 years, 4 months, and 2 days of active military service and that he earned the Army Service Ribbon and Parachutist Badge during his active duty tenure.  

6.  During the processing of this case, an advisory opinion was obtained from the United States Army Physical Disability Agency (USAPDA) Legal Advisor.  This official states that the applicant received an 80% disability rating for the loss of his left arm and two other ratings that resulted in his total disability rating being raised to 90% through the Army's PDES.  He further states that the governing regulation stipulates that if a Soldier receives an 80% disability rating, and such rating will not improve to less than 80%, they should not be placed on the TDRL. As a result, the applicant should not have been placed on the TDRL but instead should have received permanent disability compensation of 90%.  He concludes by recommending the applicant's record be corrected to reflect permanent disability retirement at 90% at the time of his REFRAD in 2000.  On
24 November 2008, the applicant concurred with this advisory opinion.   

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  Paragraph 4-19 contains guidance on Physical Evaluation Board (PEB) decisions and recommendations. 

8.  Paragraph 4-19h of the disability regulation contains guidance on deciding permanent disability.  It states, in pertinent part, that based on accepted medical principles a disability is "permanent" and a Soldier who is otherwise qualified will be permanently retired if the compensable percentage rating is 80% or more and the disability will probably not improve so as to be ratable at less than 80% during the following five years.

9.  Paragraph 4-24b(1) of the disability regulation contains guidance on the disposition by the U.S. Army Human Resources Command (USA HRC) of adjudicated cases.  It states, in pertinent part, that based upon the final decision of the USAPDA, USA HRC will issue retirement orders or other disposition instructions by reason of permanent retirement for physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to be reinstated on the disability retired list has been carefully considered and found to have merit.  Although the applicant failed to comply with existing laws and regulations requiring periodic medical examinations once placed on the TDRL, under the existing law and regulation, based on his 80% disability for the loss of his left arm, he should have been granted permanent disability retirement based on a 90% disability rating by the PEB at the time of his original placement on the TDRL.  As a result, his record should be corrected accordingly.

2.  In view of the facts of the case as outlined in the USAPDA advisory opinion, it would be appropriate to void the applicant's current 5 October 2000 REFRAD by reason of temporary disability and placement on the TDRL on 6 October 2000, and to correct his record to instead show he was honorably REFRAD by reason of permanent disability on 5 October 2000 and placed on the Retired List, in the rank of SPC, with a 90% disability rating on 6 October 2000.  He should also be provided any back retired pay due as a result of this correction.  

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that instead of being REFRAD and placed on the TDRL he was instead REFRAD under the provisions of Paragraph 4-19h and 4-24b(1), Army Regulation 635-40, by reason of Permanent Disability (Permanent retirement for physical disability) on 5 October 2000 and placed on the Retired List in the rank of specialist, E-4 on 6 October 2000, with a 90% disability rating and by providing him all back retired pay due as a result of these proceedings.



      _______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)                                         AR20080015645



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ABCMR Record of Proceedings (cont)                                         AR20080015645



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