DOCKET NUMBER:  AR20090004037 


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 5 August 1988 discharge, by reason of physical disability with severance pay, be voided and that his record be corrected to show that he was instead medically retired on that same date. 

2.  The applicant states, in effect, that he believes he was inappropriately rated and should have been medically retired instead of discharged with severance pay.  He further states that less than 30 days after his separation his disabilities were found to be in the line of duty-service connected.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 initially enlisted in the United States Air Force (USAF) and entered active duty on 4 April 1966.  He continually served in this status until being honorably released from active duty (REFRAD) and transferred to the USAF Reserve on 3 December 1969. 

3.  On 15 February 1978, the applicant enlisted in the Regular Army and entered active duty in that status.  His record shows he was promoted to staff sergeant on 6 November 1980, and that this is the highest grade he attained and served in while on active duty.  

4.  On 18 November 1987, an MOS/Medical Retention Board (MMRB) held by the 25th Infantry Division evaluated the applicant's ability to perform the physical requirements of his primary military occupational specialty (PMOS).  Based on review of the applicant's most recent permanent physical profile and all other pertinent records and reports, the MMRB determined the applicant should be reclassified out of his PMOS, which was 11B (Infantryman). 

5.  On 9 December 1987, a request for medical reclassification for the applicant was forwarded to the United States Total Army Personnel Agency (USTAPA), and on 26 January 1988, this request was disapproved by USTAPA.  The reason for disapproval was because the applicant's physical limitations were too restrictive for reclassification into any MOS. 

6.  On 27 April 1988, a Medical Evaluation Board (MEB) convened at Tripler Army Medical Center, Hawaii, to consider the applicant's case.  The MEB found the applicant unfit for continued duty due to his degenerative arthritis bilateral knees, and overuse syndrome, lower extremities, wrists, hands and elbows and recommended the applicant’s case be referred to a Physical Evaluation Board (PEB).  On 29 April 1988, the applicant concurred with the MEB findings and recommendations.   

7.  On 5 May 1988, a PEB convened at San Francisco, California, to consider the applicant’s case.  The PEB found that the applicant was physically unfit and recommended a disability rating of 10% for his degenerative arthritis, bilateral knees; with tender medial plicas, with polyarthralgias of wrists, hands, elbows, and bilateral proximal tibias, status post stress fractures of proximal tibias.  

8.  On 10 May 1988, the applicant non-concurred with the PEB findings and recommendations and demanded a formal hearing with personal appearance.  


9.  On 19 May 1988, the applicant's case was evaluated by a formal PEB, which convened at San Francisco, California.  The formal PEB found the applicant was physically unfit and recommended a disability rating of 10% for his degenerative arthritis bilateral knees with tender medial plicas, and 10% for his Polyarthralgia of wrists, hands, elbows, and proximal tibias without limitation of motion (LOM) or x-ray changes but with positive scan.  The PEB determined the skin and prostatic conditions reported were not considered unfitting or ratable.  The PEB recommended the applicant be separated with severance pay with a combined rating of 20%. 

10.  On 19 May 1988, the applicant non-concurred with the formal PEB findings and recommendations and submitted an appeal.  

11.  On 27 May 1988, after careful consideration of all the medical evidence the PEB approving authority adhered to the original findings and recommendations of the formal hearing.  

12.  On 27 May 1988, the United States Army Physical Disability Agency (USAPDA) submitted a memorandum to Headquarters, Human Resources Command (HRC)-Alexandria, Virginia for consideration of the applicant's request for continuation on active duty (COAD) as an exception to policy.  The PDA official recommended the applicant's request be denied due to the fact that his physical impairments prevented reasonable performance of duties required by the applicant's grade and MOS.

13.  On 10 June 1988, the applicant's request for COAD was denied.

14.  On 5 August 1988, the applicant was honorably discharged under the provisions of paragraph 4-24e (3), Army Regulation 635-40, by reason of physical disability with severance pay.  The DD Form 214 he was issued confirms he completed a total of 14 years, 1 month and 21 days of active military service.

15.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  


16.  Paragraph 3-1 of the PDES regulation contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

17.  Paragraph 3-5 of the PDES regulation contains guidance on rating disabilities.  It states, in pertinent part, that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Any non-ratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable. 

18.  Title 38, United States Code, sections 1110 and 1131, permits the Department of Veterans Affairs (VA) to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further 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 can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was not properly evaluated and should have been permanently retired was carefully considered.  However, there is insufficient evidence to support this claim.  By regulation, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Any non-ratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable

2.  The evidence of record shows the applicant's PDES processing was accomplished in accordance with the applicable law and regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout his disability processing.  It further shows the applicant was afforded appropriate appellate reviews by a formal PEB and the USAPDA.  As a result, absent any compelling new medical evidence to the contrary, there is an insufficient evidentiary basis to support a change to the findings and recommendations of the PEB and/or to grant the requested relief.   

3.  The applicant is advised that the VA is the appropriate agency to seek care and compensation for service connected conditions that were not unfitting for further military service at the time of processing through the Army's PDES, and he should seek relief in these areas from that agency.  

4.  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 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)                                         AR20090004037



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ABCMR Record of Proceedings (cont)                                         AR20090004037



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