IN THE CASE OF:	

		BOARD DATE:	        17 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090004841 


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 be medically retired.

2.  The applicant states that upon discharge he was placed on the Temporary Disability Retirement List (TDRL).  He adds that since that time, he never received a reevaluation to determine whether he should remain on the TDRL or permanently be retired for disability.  The applicant says that the only thing he received was severance pay with no examination.  He offers that the Department of Veterans Affairs (VA) has continuously rated him 100-percent disabled.  The applicant opines that he did not receive due process from the Army.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), statement in support of his claim, a statement from his mother, VA Rating Decision, and medical documents. 

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 records show he enlisted in the Regular Army on 7 June 2001. He was credited with 1 year, 2 months, and 10 days of active service at the time he was placed on the TDRL on 16 August 2002.

3.  Numerous medical documents dated 31 July 2001 through September 2001 documented the applicant's brain injury and medical action taken.

4.  Orders dated 15 August 2002, released the applicant from active duty and placed him on the TDRL effective 16 August 2002.

5.  The VA Rating Decision, dated 13 June 2003, shows that the applicant was granted 100-percent disability for service-connected adjustment disorder of adult life with depressions/claimed as short term memory loss, cognitive disorder, and traumatic brain injury due to frontal lope skull fracture.  He also received a 
50-percent disability rating for migraine headaches and 10-percent disability rating for loss of smell.

6.  On 24 October 2003, a physical evaluation board (PEB) convened and found the Soldier was physically unfit and recommended a disability rating of 10 percent for the applicant's frontal skull fracture with a history of non-disabling headaches.  Additionally, the board recommended that the applicant be separated with severance pay if otherwise qualified.  The second page of the document is blank.

7.  In a letter dated 29 July 2008, the United States Army Physical Disability Agency (USAPDA) stated that the applicant's case with the agency was closed and finalized in December 2003.  The USAPDA explained that on 24 October 2003 an informal PEB found the applicant unfit for his headaches and cognitive function and rated them at 10 percent.  The findings were based on a detailed neuropsychological evaluation conducted on 6 August 2003 that determined he had superior intellectual functioning with only minor problems with memory and attention.  The USAPDA said that on 11 October 2003, the applicant signed the form indicating that he concurred with the medical evaluation.  A copy of the PEB findings and the applicant's concurrence were mailed and accepted by him.  The applicant had 10 days from the date of receipt to submit any rebuttal or appeal which he failed to respond to in any manner.  On 2 December 2003, he was properly removed from the TDRL.  The USAPDA concluded that the applicant's case was correctly rated for his condition as it appeared in 2003 and the case was properly closed and finalized.
8.  In the applicant's response to the ABCMR letter dated 30 April 2008 requesting that he exhaust his administrative remedies through the USAPDA and in his response to the USAPDA letter cited above, he stated that it does appear he concurred with the findings of medical evaluations with the decision to remove him from the TDRL.  However, he offered that his state of mental health was not one in which he could make sound decisions.  He argued that he had no idea of what he was signing.

9.  In a statement from the applicant's mother, she said that when the applicant signed "that document" he was not in the right frame of mind to properly understand what he was signing.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

11.  Paragraph 7 of Army Regulation 635-40 outlines procedures for administration and processing of Soldiers whose names are on the TDRL.  The regulation states that a Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired.  Medical examiners and adjudicative bodies will carefully evaluate each case.  

12.  Army Regulation 635-40 states, in pertinent part, that a Soldier will be removed from the TDRL and separated with severance pay if the Soldier has less than 20 years of service and is unfit because of the disability for which the Soldier was placed on the TDRL and either the disability has stabilized at less than 30 percent or the disability, although not stabilized, has improved so as to be ratable at less than 30 percent.

13.  Title 38, U.S. Code, sections 1110 and 1131, permits the 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant was found unfit for duty and placed on the TDRL on 16 August 2002.  On 6 August 2003, the applicant underwent a detailed neuropsychological evaluation and was found to have superior intellectual functioning with only minor problems with memory and attention.  His headaches and cognitive function were rated at 10 percent.  On 11 October 2003, he concurred with the findings and did not submit a rebuttal or an appeal.  On 2 December 2003, the applicant was removed from the TDRL with severance pay.

2.  The applicant argues that he did not receive due process from the Army.  However, based on his own admission and the USAPDA, he concurred with the findings of the PEB.  The fact that he and his mother now state, 5 years later, that the applicant was "not in the right frame of mind to sign the document" is not sufficient evidence to justify a medical retirement.

3.  The applicant provides his 100 percent disability rating from VA in an effort to show that he should have been medically retired.  The Board acknowledges that the VA is not required by law to determine medical unfitness for further military service.  The VA 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.  Consequently, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

5.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment he received in service or any evidence to show that he was denied due process.  Consequently, there is no basis for granting the applicant's request to correct his records to show that he was medically retired.

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.



      _________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)                                         AR20090004841



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ABCMR Record of Proceedings (cont)                                         AR20090004841



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