IN THE CASE OF:	  

		BOARD DATE: 	        1 July 2009

		DOCKET NUMBER:  AR20080016839 


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 he either be restored to the Temporary Disability Retired List (TDRL) or medically retired. 

2.  The applicant states he was placed on the TDRL in 2002 due to pulmonary problems.  He was removed from the TDRL without being afforded a military medical examination, and discharged with only a 10 percent disability rating and severance pay.  He was referred to the Veterans Law Clinic for assistance in preparing this application.

3.  The applicant provides copies of his service medical records related to his pulmonary problems, his Department of Veterans Affairs (VA) rating decision, and VA medical records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states the applicant believes that in accordance with the VA Schedule for Rating Disabilities he is between 30 percent and 60 percent disabled due to lung problems.

2.  Counsel states the applicant was denied due process for the following reasons:

	a.  he did not receive any orders to report for a military physical examination prior to being removed from the TDRL;

	b.  he did not receive a copy of any physical examinations relating to his pneumothorax and surgery;

	c.  he was not properly advised of the affects of his disability rating being reduced from 30 percent to 10 percent;

	d.  he received no counseling prior to being removed from the TDRL; and

	e.  he was not given an opportunity to review the adverse medical findings that reduced his rating or given an opportunity to provide rebuttal evidence prior to the rating reduction;

3.  Counsel further contends the most current medical evidence supports a higher rating.  The VA awarded the applicant a 10 percentage disability rating based on the order putting him out of the military with severance pay.  He believes the order was issued contrary to regulations.

4.  Counsel provides a reiteration of the applicant's medical history but provides no additional evidence. 

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 entered active duty in the Regular Army on 24 February 1999. 

3.  While serving as an Army recruiter in Pennsylvania, he suffered three episodes of spontaneous pneumothoraces (collapsed lung) that required a loboectomy (removal of one lobe of the lung).

4.  A Physical Evaluation Board (PEB) found the applicant unfit for continuation on active duty and recommended that he be placed on the TDRL with a 30 percent disability rating.  The applicant concurred with the PEB findings.
5.  On 24 October 2002, the applicant was released from active duty and placed on the TDRL.  He had completed 3 years, 8 months, and 1 day of creditable active service.

6.  On 17 April 2003, the applicant applied for VA disability benefits.  He was medically examined on 23 March 2004 and he was afforded a noncompensable disability rating of 0 percent for post right inguinal hernia repair and a 0 percent rating for pneumothoraces.

7.  On 16 May 2004 the applicant underwent a TDRL re-evaluation.  He was reported to have had only a single episode of fibrillation occurring in December 2003 since his placement on the TDRL and he had no more pneumothoraces since his last evaluation.  He was diagnosed with intermittent asthma symptoms that were treated with medication.  However, he was taken off of inhaler therapy in 2003.  

8.  A review of the computerized files at the Physical Disability Agency (PDA) show the applicant was afforded a TDRL medical evaluation on 21 July 2004 which was forwarded to the PEB on 17 August 2004.  The applicant initially requested a formal hearing but subsequently withdrew that request.  His records were reviewed by the PDA on 28 September 2004 and found to warrant removal from the TDRL.  

9.  On 1 October 2004 the applicant was removed from the TDRL and discharged with a permanent 10 percent disability rating and entitlement to severance pay.  

10.  On 19 December 2004 and 19 September 2006, the VA reviewed the applicant's medical condition and continued its noncompensable disability rating of 0 percent.

11.  A 21 August 2007 VA disability decision afforded the applicant a 10 percent disability rating for post pneumothorax with reactive airway disease.

12.  A VA Rating Decision, dated 26 March 2008, continued the applicant’s 10 percent disability rating.  

13.  The applicant's integrated Personnel Electronic Records Management System (iPERMS) contains no information following his transfer to the TDRL.

14.  Title 10, U. S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of a disability incurred while entitled to basic pay:
	a.  Section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent;

	b.  Section 1202, provides for the placement of a member on the Temporary Disability Retired List when the disability may be permanent.  Placement on the Temporary Disability Retired List requires that the member meet the criteria of Title 10, United States Code, section 1201; and

	c.  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.

15.  Title 38, U. S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active 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 has the authority to reevaluate a veteran's medical condition periodically and revaluate their disability evaluation percentage.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was placed on the TDRL in 2002 due to pulmonary problems.  He was denied due process when he was removed from the TDRL without an examination and discharged with severance pay in 2004.  

2.  The applicant's due process was not violated.  The applicant was afforded a military medical examination prior to removal from the TDRL.  The findings of that examination were available to the applicant.  The applicant initially requested a formal hearing following the examination only to later withdraw his request.  This shows he was aware of the findings and the consequences of the reduction. 

3.  Further, at the time of the applicant’s removal from the TDRL, the VA had afforded the applicant a medical evaluation that resulted in a disability rating that was less than the one afforded him by the military.  It was not until 3 years after his removal from the TDRL that the VA found his condition qualified for a higher rating.

4.  Unlike the Army, the VA can evaluate a veteran throughout his 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.

5.  Counsel’s contentions are based on the applicant's statements and are not consistent with the totality of the available evidence.  

6.  Continuation on the TDRL or permanent retirement is precluded since the applicant has completed less than 20 years of service and he was separated with a combined disability rating of less than 30 percent.

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)                                         AR20080016839



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ABCMR Record of Proceedings (cont)                                         AR20080016839



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