IN THE CASE OF:	  

		BOARD DATE:	         17 September 2009

		DOCKET NUMBER:  AR20090007072 


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 his discharge be changed to a medical retirement.

2.  The applicant states he was placed on the temporary disability retired list (TDRL) and should have been placed on the permanent disability retired list (PDRL); however, his case was misdiagnosed and he was removed from the TDRL and discharged.  He adds he now has a 100 percent, service-connected disability rating [presumably by the Department of Veterans Affairs].

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was retired and placed on the TDRL; and a copy of TDRL Orders D108-4, United States Army Military Personnel Center, Alexandria, VA, dated 11 June 1986, removing the applicant from the TDRL and discharging him.

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 for 3 years on 26 June 1974, and reenlisted for 6 years on 19 May 1977.

3.  On 29 August 1983, the applicant was evaluated by a Medical Evaluation Board (MEB) at Walter Reed Army Medical Center for Addison’s disease and related issues.  The MEB found him medically unfit and referred him to a Physical Evaluation Board (PEB).

4.  On 9 September 1983, a PEB convened in Washington, DC and determined the applicant was 40 percent disabled due to Addison’s disease. The recommendation was that he be placed on the TDRL with reevaluation during March 1985.

5.  On 6 October 1983, the applicant was honorably retired by reason of temporary physical disability.  

6.  The applicant received a TDRL reexamination in 1985.  A TDRL Report of Examination was created on 2 August 1985 and forwarded to the PEB.  On 27 December 1985, an informal PEB convened to review the applicant’s medical condition.  The informal PEB found the applicant’s condition had improved, but it was still unfitting.  He was rated at 20 percent disabled and he was recommended for separation with severance pay if authorized.  On 9 January 1986, the applicant non-concurred and demanded a formal PEB.

7.  The formal PEB concurred with the findings and recommendation of the informal PEB and directed the applicant be removed from the TDRL and separated with a disability rating of 20 percent for Addison’s disease.  Orders D108-4 removed the applicant from the TDRL effective 25 June 1986 with entitlement to severance pay.

8.  Addison's disease (also known as chronic adrenal insufficiency, hypocortisolism or hypocorticism) is a rare endocrine disorder in which the adrenal glands do not produce enough steroid hormones (glucocorticoids and often mineralocorticoids).  The symptoms of Addison's disease develop insidiously, and it may take some time to be recognized.  The most common symptoms are fatigue, dizziness, muscle weakness, weight loss, difficulty in standing up, vomiting, anxiety, diarrhea, headaches, sweating, changes in mood and personality, and joint and muscle pain.  Some have marked cravings for salt 

or salty foods due to the urinary losses of sodium.  Adrenal insufficiency is manifested in the skin primarily by hyperpigmentation.  Treatment for Addison's disease involves replacing the missing cortisol, and with proper medication, patients can expect to live a healthy and normal life.

9.  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 or her office, grade, rank, or rating.  It provides for MEBDs, 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 MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

10.  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 VASRD.  Department of Defense Instruction 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.

11.  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 of service and a disability rating at less than 30 percent.

12.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including 

those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was medically retired instead of honorably discharged for disability with entitlement to severance pay.

2.  PEBs 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 recommendations to establish the eligibility of a Soldier to be separated or retired because of physical disability.

3.  The applicant was diagnosed with Addison’s disease and subsequently underwent an MEBD which recommended he be given a PEB.  He agreed with this recommendation.  The PEB found his Addison’s symptoms prevented him from performing his duties and determined that he was physically unfit for further military service.  The PEB recommended he be placed on the TDRL with periodic reevaluation.  The applicant concurred.

4.  On periodic reevaluation, the applicant’s condition was determined to have improved enough to remove him from the TDRL and discharge him with severance pay.  The applicant non-concurred and underwent a formal PEB.  In the end, he was removed from the TDRL and discharged with disability severance pay.  He now believes he should have received full retirement because the DVA has apparently granted him a 100 percent disability rating for service-connection.  However, an award of a different rating by another agency does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and their own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.

5.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PEB.  The applicant was properly rated at 20 percent for his Addison’s issues.  There is no evidence to support a higher rating or medical retirement.

6.  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)                                         AR20090007072



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ABCMR Record of Proceedings (cont)                                         AR20090007072



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