IN THE CASE OF:	  

		BOARD DATE:	19 November 2009

		DOCKET NUMBER:  AR20090007760 


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 record be corrected to show that instead of being discharged with a 20 percent disability rating on 25 October 1994 he was instead retired with a minimum of a 30 percent disability rating on that same date.  

2.  The applicant states, in effect, that the Physical Evaluation Board (PEB) erred in separating him.  He indicates he was on the Temporary Disability Retired List (TDRL) for the maximum 5 year period with a 30 percent disability rating and when the TDRL period ended, the PEB reduced the disability rating to 20 percent and separated him without severance pay.  He claims there was sufficient and pertinent medical evidence at the time of the PEB's final decision that his disability was more severe than the 30 percent originally received.  He claims the PEB incorrectly rated him and failed to keep with the requirements of the governing Army regulation and Department of Defense (DOD) policy in rating him under the proper provisions of the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD).  

3.  The applicant further claims that VA records indicate his disability has remained static and was rated by the VA at 40 percent.  Therefore, his discharge should be amended and he should be granted retirement with eligibility for all accompanying benefits.  He further indicates that recent medical evidence indicates his condition has not improved with time.   


4.  The applicant provides the following documents in support of his application:  DD Form 214 (Certificate of Release or Discharge from Active Duty); VA Rating Decision, dated 6 October 1993; Standard Form 507 (Clinical Record) Page 2; PEB Letter, dated 19 September 1994; DA Form 199 (PEB Proceedings), dated 19 September 1994; Defense Finance and Accounting Service (DFAS) Severance Pay Denial; and a doctor's letter, dated 13 March 2009. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The American Legion, acting as counsel, requests that the Board review the evidentiary record, deliberate, and properly dispose of the applicant's case.

2.  Counsel states, in effect, that the applicant's DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) accepted as a DD Form 149 (Application for Correction of Military Record) amply advances the applicant's contention and substantially reflects the probative facts needed for equitable review.  Accordingly, counsel rests this case on the evidence of record. 

3.  Counsel provides a statement in support of the 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.  On 6 December 1991, a PEB convened at Fort Sam Houston, Texas to evaluate the applicant's case.  It determined the applicant's severe left knee lateral instability with ligament damage and secondary peroneal nerve palsy condition was unfitting and awarded a 30 percent disability rating under VASRD Code 5257.  The PEB recommended the applicant be placed on the TDRL with reexamination during January 1993.  The applicant concurred with the findings and recommendations of the PEB and its findings and recommendations were approved on behalf of the Secretary of the Army on 15 January 1992. 

3.  On 14 February 1992, the applicant was honorably retired, by reason of physical disability-temporary, after completing 5 months and 23 days of active military service.  On 15 February 1992, he was placed on the TDRL, in the rank of private/E-1, with a 30 percent disability rating.  

4.  On 25 January 1993, a PEB convened at Walter Reed Army Medical Center (WRAMC) to reconsider the applicant's case.  The PEB found the applicant remained physically unfit and recommended he be retained on the TDRL with reexamination in February 1994.  

5.  On 11 July 1994, a PEB convened at WRAMC to reconsider the applicant's case.  The PEB determined the applicant suffered from left knee mild instability and early post-traumatic arthritis post anterior cruciate ligament (ACL) reconstruction (VASRD 5257) and left peroneal nerve palsy incomplete motor and sensory recovery (VASRD 8521) and assigned a 10 percent disability rating for each of these conditions, for a combined disability rating of 20 percent.  The PEB recommended the applicant's disability separation with severance pay if otherwise qualified.  

6.  On 28 July 1994, the applicant non-concurred with the findings and recommendations of the PEB and demanded a formal hearing of his case.  

7.  On 19 September 1994, a PEB convened at WRAMC to conduct a formal hearing into the applicant's case.  The applicant appeared with his counsel.  The PEB after carefully considering the available evidence, to include the medical evidence and the testimony of the applicant, found the applicant was unfit to perform his duties because the functional limitations of his knee and nerve injuries prevented reasonable performance of his duties in his military occupational specialty (MOS) and grade.  It further stated that the applicant's knee condition, which required no brace or assistance devices, was rated at 
10 percent under VASRD Code 5010-5257, and his nerve injury, with partial numbness in the leg and foot, was rated at 10 percent under VASRD Code 
8521.  The PEB finally recommended the applicant be separated with severance pay if otherwise eligible.  

8.  On 4 October 1994, the applicant concurred with the findings and recommendations of the PEB, and the PEB was approved on behalf of the Secretary of the Army.  

9.  The applicant's removal from the TDRL and discharge, effective 25 October 1994, was directed in United States Army Personnel Command (PERSCOM) Orders D206-7.  These orders indicated the applicant received a disability percentage of 20 percent and was entitled to severance pay provided he completed over 6 months of service.  
10.  A DFAS form on file confirms that the applicant was not due severance pay in conjunction with his removal from the TDRL and disability discharge because he had less than 6 months of service.  

11.  A VA Rating Decision provided by the applicant shows that the applicant was granted a combined disability rating of 40 percent for a status post complete disruption lateral collateral ligament and ACL, status post cruciate reconstruction and lateral collateral ligament repair (30 percent) and a left peroneal nerve palsy traumatice with left foot drop (20 percent), effective 15 February 1992, under VASRD Codes 5315 and 8521, respectively. 

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.

13.  Appendix B of the same regulation provides guidance on the Army's application of the VASRD.  It states, in pertinent part, that not all of the general policy provisions of the VASRD apply to the Army.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

14.  Paragraph B-35 of the same regulation contains guidance on VASRD code 5257 (Knee, other impairments) and states, in pertinent part, that a rating of 10 percent for slight knee instability is appropriately awarded in those cases where the lateral instability of the subject knee has failed to improve with the administration of physical therapy.  Paragraph B-104 contains guidance on VASRD codes 8510-8730 and states, in pertinent part, that VASRD code 8521 should be rated in terms of loss of function, rather than topographically.  

15.  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. The VA can evaluate a veteran throughout his or her 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 the PEB erred in assigning him a combined disability rating of 20 percent and that he should have been medically retired instead of discharged, by reason of disability, was carefully considered.  However, there is insufficient evidence to support this claim.  

2..The evidence of record confirms that subsequent to his placement on the TDRL, he was properly processed through the PDES during his TDRL reevaluation in 1994.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the PDES process.

3.  The record further shows that after the 1994 PEB determined the applicant was unfit and assigned him a combined disability rating of 20 percent, 10 percent for left knee instability and early post-traumatic degenerative arthritis and 
10 percent for left peroneal nerve palsy, he was properly discharged by reason of permanent disability without severance pay.  He was properly not authorized severance pay because he had completed less than 6 months of active military service.  

4.  The DA Form 199 prepared to document the proceedings of the 
19 September 1994 PEB completed on the applicant shows his knee condition required no brace or assistance device and his nerve injury resulted in only partial numbness in his leg.  As a result, they were both rated at 10 percent under VSARD codes 5010-5257 and 8521, respectively.  Given the mild nature of both conditions, the assigned 10 percent ratings appear to have been appropriate.  The DA Form 199 also shows the applicant concurred with the findings and recommendations of the PEB on 4 October 1994.  As a result, there is no apparent error or injustice related to the PEB process or its findings and recommendations in the applicant's case. 

5.  The VA rating decision provided by the applicant was also carefully considered.  However, the VA may rate any service-connected impairment, thus compensating for loss of civilian employment.  It may also award 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. It can also evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

6.  An award or change in the disability rating granted by the VA would 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.  The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  As a result, the applicant was properly assigned a disability rating from the Army based on the unfitting diagnosed conditions at the time of his discharge, and is now properly being treated and compensated for all his service-connected conditions by the VA.

7.  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 submit evidence that would 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)                                         AR20090007760



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ABCMR Record of Proceedings (cont)                                         AR20090007760



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