IN THE CASE OF:	  

		BOARD DATE:	       6 January 2009

		DOCKET NUMBER:  AR20080017482 


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 correction of his permanent retirement disability rating to show 100 percent disability instead of 90 percent. 

2.  The applicant states that prior to his medical retirement, he had two surgeries which changed his medical condition with regard to his lower extremities and the total loss of his legs and feet.  He adds that he underwent spinal cord surgery at the T11-12 to flush out an infection which ultimately led to his current inability to use his legs or feet.  He also adds that subsequent to his surgery in mid- December 2005, he forwarded the medical documentation to his case manager at Fort Bragg, North Carolina, to effect a change in his PEB rating prior to his medical retirement on 10 January 2006; however, no action was taken.

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  Orders 287-0271, dated 14 October 2005, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina.

	b.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 10 January 2006.

	c.  A self-authored statement, dated 6 October 2008.

	d.  DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 12 September 2005.
	e.  DA Form 3947 (Medical Evaluation Board Proceedings), dated 13 April 2005.

	f.  Health Summary, dated on miscellaneous dates in 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 10 August 1983.  He held military occupational specialty (MOS) 79R (Recruiter), executed several extensions and/or reenlistments in the Regular Army, served in various staff and leadership positions in the continental United States and overseas, and attained the rank of first sergeant (1SG). 

2.  On 11 July 2004, the applicant was involved in a motorcycle accident that led to his spinal cord injury that was complicated with severe spasticity in the abdomen and back and both lower extremities.  He underwent emergency surgery of the thoracic spine with rods and screws on the day of the injury.    After hospitalization and a series of treatments and therapy, he was released from the hospital on 23 November 2004 to his home in North Carolina.

3.  On 13 April 2005, an MEB convened at Womack Army Medical Center, Fort Bragg, North Carolina.  After consideration of the clinical records, laboratory findings, and physical examinations, the MEB found that the applicant had paraplegia below the waist and neurogenic bladder and recommended his referral to a PEB.  The applicant indicated that he did not desire to continue on active duty and concurred with the MEB's findings and recommendation.

4.  On 17 May 2005, an informal PEB convened at Walter Reed Army Medical Center and found the applicant's condition prevented him from performing his duties and determined that he was physically unfit due to bilateral lower extremity spastic paraparesis and neurogenic bladder.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a 100 percent disability rating for codes 8599 and 8520 and a 60 percent disability rating for code 7542, for a combined rating of 100 percent.  The PEB recommended that the applicant be permanently retired.  The applicant concurred with the findings and recommendation of the informal PEB and waived his right to a formal hearing of his case.

5.  On 16 June 2005, the Chief of Operations at the U.S. Army Physical Disability Agency (USAPDA) reviewed the applicant's case and ordered it returned to the military treatment facility (MTF) for absolute clarification of the applicant's physical status and re-adjudication in light of the results obtained.

6.  On 12 September 2005, a second PEB convened at Walter Reed Army Medical Center and found the applicant's condition prevented him from performing his duties and determined that he was physically unfit due to paraplegia caused by thoracic spinal cord and neurogenic bladder.  The applicant was rated under the VASRD and was granted a 70 percent disability rating for codes 8599 and 8520 and a 60 percent disability rating for code 7542, for a combined rating of 90 percent.  The PEB again recommended that the applicant be permanently retired.  The applicant concurred with the findings and recommendation of the informal PEB and waived his right to a formal hearing of his case.

7.  On 14 October 2005, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina, published Orders 287-0271, ordering the applicant's release from active duty, effective 10 January 2006, by reason of physical disability.  The orders further noted that the percentage of disability is 90 percent.

8.  On 26 October 2005, the applicant underwent baclofen pump placement (a medication commonly used to decrease spasticity related to multiple sclerosis, spinal cord injuries, or other neurological diseases; spasticity is a muscle problem characterized by tight or stiff muscles that may interfere with voluntary muscle movements).  He was discharged on 21 November 2005 with a dry and completely healed incision site.

9.  On 27 November 2005, the applicant noticed an increase in his spasticity and within two days he was unable to move his spine because of spasms.  Shortly thereafter, his back incision started draining and he was readmitted to the hospital on 30 November 2005 where he was diagnosed with an infected baclofen pump.  He subsequently underwent additional surgery to correct the infections with additional laminectomies at T-12-L-1 and L-2 for decompression and drainage.  His infections were controlled; however, a physical therapy note, dated 13 December 2005, revealed no sensation below the waist and no lower extremity muscle strength.  

10.  On 10 January 2006, the applicant was retired from the Army in accordance with Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) in his retired rank of 1SG.  The DD Form 214 he was issued shows he completed 22 years, 5 months, and 1 day of active Federal service.  Item 18 (Remarks) of this form further show the entry "Soldier's disability is service connected and is entitled [to] 90% disability." 



11.  An advisory opinion was obtained on 25 November 2008 in the processing of this case.  The USAPDA legal advisor recommended the applicant's records be corrected to show a 100 percent disability rating vice 90 percent; however, with no change in compensation or benefits from the military.  The legal advisor stated that:

	a.  On 5 September 2005, a PEB rated the applicant at 70 percent for his bilateral lower extremity spastic paraparesis and 60 percent for a neurogenic bladder, for a total of a 90 percent rating with permanent disability retirement.  The applicant concurred with the PEB's findings and waived his right to a formal hearing;

	b.  On 30 November 2005, the applicant was admitted to the hospital with increased back pain and spasticity.  It was discovered that his baclofen pump was infected and he needed wound care at his prior surgery site.  On 1 and 2 December 2005, he had additional surgery to correct infections with additional laminectomies at T-12-L-1 and L-2 for decompression and drainage.  The infections were controlled, but a 13 December 2005 physical therapy note revealed no below the waist sensation and no lower extremity muscle strength.  This new information was apparently not provided to the PEB before the applicant was permanently retired on disability at 90 percent on 10 January 2006; and

	c.  The applicant's changed condition would have resulted in a 100 percent rating for his bilateral lower paraparesis.  However, such change would not have resulted in any change to the applicant's compensation or benefits from the military.  Disability compensation is capped at 75 percent of a Soldier's basic pay and ratings above 75 percent cannot increase the Soldier's compensation in accordance with section 1401 of Title 10, U.S. Code.  Benefits are equal for all retired Soldiers.

12.  The applicant was furnished with a copy of this advisory opinion on 26 November 2008; however, he did not clearly indicate his concurrence or non-concurrence and rather sent a rebuttal letter, dated 1 December 2008, restating the issue.  He was subsequently contacted by a staff member of the Board, but he was unavailable and did not respond to messages.

13.  AR 635-40 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 chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

14.  Title 10, U.S. Code, section 1201 prescribes the computation of retired pay.  It states, in pertinent part, that for Soldiers retiring under Section 1201, retired pay is computed under section 1406(b) and 1407, by either the percentage of disability on date when retired or by multiplying the number of years credited to the Soldier by 2.5, and subtracting any excess over 75 percent of retired pay base upon which computation is based.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his disability rating should be changed from 90 percent to 100 percent.

2.  The evidence of records shows that after the PEB had convened and recommended the applicant be permanently retired for disability with a 90 percent rating, he suffered an injury/illness that worsened his medical condition.  It is not clear why the PEB did not reconvene and consider his new medical condition.  Nevertheless, the fact remains that he suffered a medical condition while on active duty that may have qualified him for an additional disability percentage had it been considered by a PEB.  Therefore, in the interest of justice, the applicant's records should be corrected to show his combined disability percentage as 100 percent vice 90 percent.

3.  The applicant is reminded that this percentage increase does not qualify him for additional disability retirement pay as his retired pay was capped at 75 percent as prescribed in section 1201 of Title 10, U.S. Code.

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:

	a.  amending his 12 September 2005 PEB to add that he was found unfit due to bilateral lower paraparesis and that he was given a combined disability rating of 100 percent; 

	b.  amending Orders 287-0271, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina, on 14 October 2005 to show the percentage of disability as 100 percent vice 90 percent; and 

	c.  deleting the entry "Soldier's disability is service connected and is entitled to 90% disability" from Item 18 of his DD Form 214 and replacing it with the entry "Soldier's disability is service connected and is entitled to 100% disability.



															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)                                         AR20080017482





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ABCMR Record of Proceedings (cont)                                         AR20080017482



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