IN THE CASE OF:	  

		BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090004926 


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 DA Form 199 (Physical Evaluation Board (PEB) Proceedings) be corrected to show a higher disability rating in order to account for all of his medical problems, to include his neck, ankle, spine, knees, left hip, angina, and leukemia.

2.  The applicant states an “88 wrecker tank” hit him through no fault of his own and that everything was covered up and omitted from the record.

3.  The applicant provides:

	a.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty);

	b.  a copy of a 2nd endorsement, subject:  Line of Duty (applicant's name, social security number, and unit);

   c.  a copy of a DA Form 2173 (Statement of Medical Examination and Line of Duty), with cover memorandum; and

	d.  a copy of page 3 a DD Form 2808 (Report of Medical Examination).





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 was a Regular Army (RA) Soldier.  He served in military occupational specialty (MOS) 14S (Avenger Crewmember).

3.  On 22 January 2001 at Fort Irwin, CA, the applicant was performing his duties driving an M-1037 Shelter Carrier HMMWV (High Mobility Multipurpose Wheeled Vehicle).  At approximately 1729 hours on 22 January 2001, his vehicle was struck by an M-88 Recovery Vehicle, causing his vehicle to roll over.

4.  The applicant was injured in the vehicle accident and taken to Weed Army Community Hospital at Fort Irwin.  An informal line of duty investigation was completed on 16 February 2001 which determined the applicant was not at fault and that his injuries occurred in the line of duty.  The DA Form 2173 was approved by authority of the Secretary of the Army on 5 March 2001.

5.  The applicant continued to have residual effects from his vehicle accident.  He was finally referred to the Army’s Physical Disability Evaluation System (PDES). On 19 February 2002, he underwent a Medical Evaluation Board (MEB) for chronic mechanical low back pain.  On 26 February 2002, he underwent an informal PEB at Fort Lewis, WA.  The DA Form 199 shows the applicant was found physically unfit by reason of chronic mechanical low back pain (VA Code 5295), rated as 10 percent disabling, and recommended he be separated with severance pay.  On 27 February 2002, the applicant concurred and waived a formal hearing of his case.

6.  On 7 April 2002, the applicant was discharged by reason of disability with severance pay.  He was awarded $28,036.80 in severance pay.


7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 office, grade, rank, or rating.  It provides for MEB’s, 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 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

8.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD).  Department of Defense Instruction (DODI) 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.  

9.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating of at less than 30 percent.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant, in effect, would like a higher disability rating which would account for all of his medical issues.  He alleges his accident was covered up.

2.  The applicant’s motor vehicle accident was well documented.  The DA Form 2173 was properly completed and absolved him of any responsibility for an M-88 striking his M-1037.

3.  The applicant’s inability to perform the duties of his MOS stemmed from chronic low back pain.  He was evaluated for this condition and found to be physically unfit for continued service.  He was properly rated on VASRD code 5295 and awarded a 10 percent disability rating.



4.  The applicant alleges other medical conditions – angina and leukemia – not specifically related to his well-documented motor vehicle accident; however, he provides no medical evidence pertaining to these conditions.  Furthermore, in all of his available service medical records and PDES documentation, he never once mentioned or complained of symptoms which would lead to a diagnosis of angina or leukemia.  These two conditions did not present, and were not rated at the time of his PEB.

5.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.

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)                                         AR20090004926



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ABCMR Record of Proceedings (cont)                                         AR20090004926



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