IN THE CASE OF:
BOARD DATE: 13 August 2009
DOCKET NUMBER: AR20090005425
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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show physical disability retirement vice discharge.
2. The applicant states he is 100 percent disabled due to a combat-related IED (improvised explosive device) explosion. He states he was supposed to be retired.
3. The applicant provides a copy of a General Power of Attorney, dated
1 November 2004, appointing his parents as his attorneys-in-fact; a copy of his DD Form 214; and a copy of retirement Orders 278-0004, U.S. Army Transportation Center and School, Fort Eustis, VA, dated 5 October 2006.
CONSIDERATION OF EVIDENCE:
1. The applicant served on active duty in the Regular Army (RA) from
3 November 2004 through 27 October 2006. He served in military occupational specialty (MOS) 11C (Indirect Fire Infantryman).
2. The applicant served in Iraq from 9 August 2005 through 11 December 2005. On 11 December 2005, he was involved in an IED blast which left him gravely
injured. He was evacuated to the United States and ultimately admitted to the Burn Unit, U.S. Army Institute of Surgical Research, Brooke Army Medical Center, San Antonio, TX, on 17 December 2005.
3. A Narrative Summary (NARSUM) was dictated and typed on 19 May 2006. On 19 July 2006, a Medical Evaluation Board (MEBD) was conducted which diagnosed the applicant with burns over 61 percent of his total body surface, traumatic amputation of his left leg below the knee, traumatic brain injury (TBI) with persistent vegetative state, bilateral tibia and fibula fractures, bilateral calcaneal fractures [sic], and hypertension. He was referred to a Physical Evaluation Board (PEB).
4. On 8 June 2006, a PEB was convened at Fort Sam Houston, TX. The applicants medical conditions were considered and he was rated as follows:
VA Code 8045 / 9304 TBI, persistent vegetative state 100 %
VA Code 5165 Left below knee amputation 040 %
VA Code 5262 Right tibia/fibula fracture 040 %
VA Code 7802 Anterior trunk burns 010 %
VA Code 7802 Posterior trunk burns 010 %
VA Code 5284 Right calcaneal fracture 000 %
The applicants hypertension was not rated as unfitting. His overall disability rating was 100 percent and it was recommended he be permanently retired.
5. Fort Eustis published retirement Orders 2378-0004 on 5 October 2006 retiring the applicant from active duty on 27 October 2006 and placing him on the retired list, effective 28 October 2006. His retired grade was listed as specialist (SPC)/
E-4), his percentage of disability was listed as 100 percent, and his years of service were listed as 1 year, 11 months, and 25 days. His disability was deemed to be 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.
6. The applicants DD Form 214 shows, in Item 23 (Type of Separation), DISCHARGE. However, his Separation Program Designator (SPD) Code in Item 26 shows a code of SFJ meaning RETIREMENT, DISABILITY, PERMANENT.
7. Army Regulation 635-5-1 (Separation Documents) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from
active duty, and the SPD codes to be entered on DD Form 214. For Soldiers with an SPD code of SFJ, the type of separation in Item 23 should be RETIREMENT.
DISCUSSION AND CONCLUSIONS:
1. The applicant was a SPC serving in Iraq. On 11 December 2005, he was gravely wounded in an IED attack. He was subsequently retired by reason of permanent physical disability.
2. The applicants DD Form 214 shows a retirement SPD code, but the type of separation in Item 23 of his DD Form 214 shows DISCHARGE. This entry should show RETIREMENT.
3. It is noted that the Defense Finance and Accounting Service (DFAS) has established a retired pay account for the applicant. The account is in a suspended status pending appointment of a legal representative to act in the applicants behalf. Furthermore, because he is in receipt of Department of Veterans Affairs (DVA) pay and that pay exceeds his retired pay, he is a full DVA waiver.
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. deleting from Item 23 of the applicant's DD Form 214 the entry "DISCHARGE" and replacing it with the entry "RETIREMENT"; and
b. providing the applicant a correction document as a result of this change.
__________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) AR20090005425
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20090005425
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2014 | 20140003348
Currently the VA rates his disability at 60% for the left leg, 20% for his right leg, and 50% for PTSD. The PEB rated his two unfitting conditions and recommended a 60% rating for the left leg (above-the-knee amputation) and 30% for the right leg (healing open fracture). As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * showing he underwent a TDRL PEB in 1996 and his conditions of amputation of the leg and PTSD were...
AF | PDBR | CY2010 | PD2010-00591
His condition involved more an injury to his knee; the midshaft of the left knee and ankle, peroneal nerve, weakness and antalgic gait contributed to his pain. Left Lower Leg Condition. Exhibit C. Department of Veterans' Affairs Treatment Record.
AF | PDBR | CY2012 | PD2012-00256
Another VA C&P examination performed on 22 March 2006, 8 months after separation showed continued signs of muscle weakness and sensory loss with some loss of muscle bulk with abnormal gait. Subsequently, the VA rated the left leg condition separately from the combined rating in the 3 November 2006 VA rating decision and rated it 20%, coded 8523-5262, (incomplete) paralysis of the deep peroneal nerve and impairment of the tibia and fibula. The VA C&P orthopedic examiner for the 22 June...
ARMY | BCMR | CY2010 | 20100014472
His TSGLI claim was denied due to lack of medical documentation despite submitting his inpatient, outpatient, physical therapy, and occupational therapy medical records as well as two supporting letters, one of which was from his orthopedic surgeon who performed the surgery and the other from his girlfriend who provided the assistance. The TSGLI program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury. Neither the available...
ARMY | BCMR | CY2014 | 20140012408
c. Counsel essentially asserts the following: * the applicant was involved in an significant accident, on 24 January 2009, while deployed in Iraq * he was rigging equipment to a beam when the beam swung, striking him and knocking him to the ground; he fell 10 feet * he was hospitalized in Landstuhl, Germany for a closed left tibia fracture with compartment syndrome and fibula fracture with extension to the ankle * he was eventually sent back to Fort Stewart, GA where he received further...
ARMY | BCMR | CY2010 | 20100015299
He was eligible for the $50,000.00 TSGLI benefit for the right arm amputation; however, he received the higher amount of $75,000.00 for the loss of ADL (bathing, dressing, and eating) and other traumatic injury (OTI) for 90 consecutive days of hospitalization. He claimed he suffered a qualifying loss for: * a second-degree burn to the body including the face and head * facial reconstruction of his lower jaw of 50 percent of the left mandibular on 15 October 2005; the form was certified by...
ARMY | BCMR | CY2008 | 20080018505
As such, the PEB did not rate those conditions. Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, U.S. Code, section 1210) when it is determined that the individuals physical disability is not stable and he or she may recover and be fit for duty, or the individuals disability is not stable and the degree of severity may change within the next 5 years so as to change the disability...
ARMY | BCMR | CY2002 | 2002082957C070215
He continued to be treated for his ankle pain until his discharge for his physical disability on 12 October 2001. A 26 February 2002 radiographic report shows that the applicant had a metallic rod through most of the tibia, a healed mildly deformed distal tibial fracture, and a nonunited transverse fracture proximal fibula. The applicant's discharge with a 10 percent disability rating was proper and in accordance with the VASRD and Army regulations.
ARMY | BCMR | CY2011 | 20110019401
The applicant states his final disability rating needs to be corrected to include the two secondary conditions as stated by military medical doctors in both of his post-Temporary Disability Retired List (TDRL) medical examinations. The USAPDA recommended no change in the applicant's final Army disability percentage; however, the applicant's 7 December 2010 PEB Proceedings should be amended to reflect that his left wrist pain is unfitting and rated at 10 percent. As a result, the Board...
AF | PDBR | CY2011 | PD2011-00674
The PEB adjudicated the multiple keloid scarring condition as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD), and possibly the US Army Physical Disability Agency (USAPDA) pain policy. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left shoulder, 10% for the right ankle, 10% for the left ankle and 10% for the abdominal area...