IN THE CASE OF:	  

		BOARD DATE:	       30 July 2009

		DOCKET NUMBER:  AR20090003466 


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 record be corrected to show he completed 20 years of service; that his Physical Evaluation Board (PEB) proceedings be corrected to show the true origins of his combat-related disabilities and that his disabilities be coded combat related.  He also requests that his disability retirement be changed to an early retirement under the Temporary Early Retirement Authority (TERA).  

2.  The applicant states, in effect, that the medical conditions listed on his PEB proceedings began in 1991 after he returned from the Gulf War.  He indicates that while participating in training for combat at the National Training Center (NTC) his track flipped over and he went to the emergency room at Darnall Army Hospital on 21 August 1993.  He claims he sustained injuries that included neck, shoulder, hip, knee, joint, wrist, ankle, and back pain.  He also states that his migraine headaches began after this incident and that all of his medical conditions should all be considered combat related.  He also indicates he participated in several simulated training exercises that continually aggravated his medical conditions.  The applicant claims he was rushed through the Medical Evaluation Board (MEB) and PEB process instead of being retired under TERA as he requested.

3.  The applicant provides a self-authored statement, a newspaper article, and a copy of his medical records 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 enlisted in the Regular Army and entered active duty on 21 February 1979.  He was trained in, awarded, and served in military occupational specialty (MOS) 11M (Infantryman).

3.  On 1 September 1994, the staff at Darnell Army Community Hospital (DACH), Fort Hood, Texas, prepared an MEB Narrative Summary (NARSUM) that indicated the applicant was diagnosed with moderately severe degenerative joint disease of bilateral hips (left greater than right) and a nonspecific rash on his chest.  The attending physician recommended separation from the Army in accordance with Army Regulation 40-501.  

4.  On 19 October 1994, an MEB at DAHC considered the applicant's diagnosed medical conditions and recommended referral to a PEB.  

5.  Other clinics at the DACH prepared subsequent MEB NARSUM Addenda following the applicant’s additional examinations and diagnoses that were made on the following dates:  (1) on 2 November 1994 - L5/S1 herniated nucleus pulposus, moderate hearing loss documented by Ears Nose and Throat (ENT) and headache, etiology undetermined; (2) on 28 November 1994 - severe degenerative joint disease of the hips, poor sleep hygiene, probable sleep apnea, and gastro-esophageal reflux disease; (3) on 31 August 1995 - moderate to severe obstructive sleep apnea with significant sleep fragmentation and mild oxygen “desaturation,” history consistent with psycho-physiologic insomnia, and other diagnoses by primary care physician; and (4) on 7 September 1995 - migraine headaches, noncompliance with recommendations and subjective memory complaints consistent with benign forgetfulness.

6.  The MEB findings and recommendation were approved by proper authority and, on 29 November 1995, the applicant agreed with the approved findings and recommendation.
7.  On 8 January 1996, the President of the PEB returned the MEB proceedings to the DACH PEB Liaison Officer (PEBLO) to be revised for clarification purposes.  

8.  On 7 February 1996, an MEB NARSUM was prepared on the applicant 
and contained the following diagnosed conditions:  (1) Severe degenerative
joint disease, hips, left greater than right; (2) L5/S1 herniated nucleus pulposus mild; (3) S1 radiculitis, left greater than right, mild; (4) Severe to profound 
sleep apnea; (5) Sleep fragmentation, severe, with mild oxygen desaturation; 
(6) Psychophysiologic insomnia; (7) Migraine headache syndrome, moderate, with incapacitating attacks, frequent; (8) Benign forgetfulness; (9) Gastro-esophageal reflux disease, moderate with mild peptic ulcer; (10) Atypical chest pain; (11) Hypercholesterolemia; (12) Nonspecific chest wall rash; (13) Moderate hearing loss; (14) Left wrist de Quervain's syndrome, mild; (15) Left tibiotalar joint, degenerative joint disease, mild; (16) Symptomatic erectile dysfunction with negative urologic evaluation and provocative urologic testing; (17) Migratory joint pain in knees and interphalangeal joints with negative physical exam findings; and (18) Bilateral tibial stress reactions, mild. 

9.  On 20 February 1996, the MEB recommended referral of the applicant to a PEB.  The applicant was informed and agreed with the findings and recommendation of the MEB on 1 March 1996.

10.  The applicant's DA Form 199, which was prepared on 8 March 1996, shows the applicant's spine and knee conditions were caused while in the line of duty during a time of war or National emergency.  However, this form does not show that they were incurred as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law.

11.  On 8 March 1996, the applicant's case was considered by a PEB.  That PEB considered the applicant's pain associated with severe degenerative joint disease, hip, left greater than right; L5/S1 herniated nucleus pulposus and S1 radiculitis, left greater than right, both mild (diagnoses 1-3); profound obstructive sleep apnea with severe sleep fragmentation and mild oxygen desaturation (diagnoses 4-5); and migraine headache syndrome, moderate with incapacitating attacks, frequent (diagnosis 7) as unfitting and recommended permanent disability retirement with a disability rating of 40%.  The PEB further determined that diagnoses 6 and 8 - 18 were not unfitting and therefore not rated.  The PEB also determined that the applicant's retirement was not based on disabilities from injuries or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law and that the disabilities did not result from a combat-related injury as defined in Title 26 of the U. S. Code, Section 104       (26 USC 104).

12.  On 20 March 1996, the applicant concurred with the PEB’s findings and recommendations, and waived his right to a formal hearing.  The PEB's findings were finally approved on behalf of the Secretary of the Army on 8 April 1996.

13.  On 5 July 1996, the applicant was honorably retired from active duty.  The 
DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at that time confirms the applicant was retired by reason of permanent disability.  It also shows he completed a total of 17 years, 4 months, and 15 days of active military service.  

14.  The applicant provides, United States Army Human Resources Command (AHRC), Combat Related Special Compensation (CRSC) Division Letter, dated 10 October 2008, which shows he was granted a 100% CRSC disability rating on 8 January 2008.  He also provides a Killeen Daily Herald news article in which he explains his frustration with being forced out of the Army and getting the runaround from the Waco Veterans Affairs Regional Office as it relates to receiving a proper disability rating.

15.  The Department of Defense Financial Management Regulation (DODFMR) contains DOD financial management policy and procedure.  Paragraph 0101 contains guidance on creditable service and all service which is creditable is listed in paragraph 010101.  This regulation provides no provisions of crediting service that is not performed.  

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 6, contains guidance on Continuation on Active Duty (COAD) and Continuation on Active Reserve Status (COAR).  It states, in pertinent part, that a Soldier determined unfit due to physical disability by the physical disability evaluation system (PDES) may be deferred from disability separation or retirement when it is determined that the Soldier can still serve effectively with proper assignment limitations.  Soldiers may request continuation upon notification of medical disqualification.  

17.  Army Regulation 635-40 states in pertinent part, that a member whose retirement from the service is based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war is entitled to certain special considerations if he subsequently goes to work for the Federal Government.  The disability must have resulted from injury or disease received in line of duty as a direct result of armed conflict and which itself renders the Soldier unfit.  A disability may be considered a direct result of armed conflict if it was incurred while the Soldier was engaged in armed conflict or in an operation or incident involving armed conflict or the likelihood of armed conflict; if a direct causal relationship exists between the armed conflict or the incident or operation and the disability; or if the disability which is unfitting was caused by an instrumentality of war and was incurred in line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in line of duty will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law.

18.  In 1993, Congress approved the use of a TERA as a drawdown tool.  This measure allowed the Army to offer early retirement to certain Soldiers who have at least 15, but not yet 20 years of service under the Voluntary Early Retirement Program (VERP).  Early retirement was not an entitlement and the Army offered it only to selected Soldiers in excess grades and skills.  TERA provisions of the law were applicable only to specific categories of personnel.  This included personnel who were processed through the PDES who received a disability rating of less than 30% from the PEB, and who had completed at least 15 years but less than the 20 years of active duty service necessary to qualify for length of service retirement.  TERA was not authorized for personnel who received a disability rating of 30% or higher and who qualified for disability retirement.

19.  Combat-Related Special Compensation, as established by Title 10, U.S. Code, section 1413a, as amended, provides for the payment of the amount of money a military retiree would receive from the Department of Veterans Affairs (VA) for combat-related disabilities if it wasn’t for the statutory prohibition for a military retiree to receive a VA disability pension.  Payment is made by the Military Department, not the VA, and is tax free.  Eligible members are those retirees who have disabilities that are the direct result of armed conflict, specially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10-percent disabling.  For periods before 1 January 2004 (the date this statute was amended), members had to have disabilities for which they have been awarded the Purple Heart and are rated at least 10-percent disabled or who are rated at least 60-percent disabled as a direct result of armed conflict, specially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim that his record should be corrected to show he completed 20 years of service was carefully considered.  However, by law and regulation, active duty service actually performed in an authorized status is creditable for retirement purposes.  There are no regulatory provisions that allow for crediting active duty service for periods that were not actually served in a valid status.  

2.  The evidence of record confirms the applicant had completed a total of 17 years, 7 months and 5 days of active military service at the time of his disability retirement.  Therefore, absent any evidence of error or injustice in the applicant's PDES processing or evidence that shows he requested COAD (and would have been found qualified for retention) or actually performed additional active duty service subsequent to retirement, there is an insufficient evidentiary basis to credit him with 20 years of active duty service for retirement purposes.  

3.  The applicant's contention that he should be granted TERA retirement was also carefully considered.  However, TERA provisions of the law were applicable only to specific categories of personnel.  This included personnel who were processed through the PDES who received a disability rating of less than 
30% from the PEB, and who had completed at least 15 years but less than the 20 years of active duty service necessary to qualify for length of service retirement.  TERA was not authorized for personnel who received a disability rating of 30% or higher and who qualified for disability retirement, as was the case with the applicant.  As a result, there is an insufficient evidentiary basis to support granting the applicant a TERA retirement in lieu of his permanent disability retirement.

4.  The applicant's request to change his PEB proceedings to show his unfitting disabilities were combat related was also carefully considered.  However, the evidence of record confirms that the applicant was properly processed through the Army's PDES and that his permanently retired with a 40% disability rating.  It further confirms he concurred with the findings and recommendation of the PEB and elected not to demand a formal hearing of his case (appeal).  Subsequently, the applicant was granted a 100% total combat related disability rating by the United States Army Human Resources Command (HRC) CRSC Division, which authorizes him all benefits related to his combat related disabilities.  

5.  The applicant was awarded the CRSC benefits for conditions because the CRSC Board determined that the applicant's conditions were incurred during a simulation of war and evidence did not support that they occurred as a result of direct combat.  The PEB’s proceedings in question were prepared on 8 March 1996, several years prior to the establishment of the CRSC benefit program and the underlying combat related criteria for the programs differ.  Therefore, it would not be equitable to apply the current CRSC rules to the disability processing system that was in place in 1996.  The applicant has not shown that the PEB’s proceeding was not accurate or unjust at the time of preparation.  As a result, it would not be in the interest of justice to amend the PEB’s proceedings to show his disabilities were combat related as requested. 

6.  The PEB proceedings are an accurate representation of that board's findings and recommendations at the time, which the applicant concurred with.  The applicant's combat-related disabilities are accurately and appropriately documented in the CRSC rating assigned by HRC, which is now a part of the record.  Therefore, absent any evidence of error or injustice in his PDES processing and given no additional disability benefits would accrue to the applicant, no practical purpose would be served by changing the PEB proceedings at this late date.  

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 that 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)                                         AR20090003466



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ABCMR Record of Proceedings (cont)                                         AR20090003466


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