IN THE CASE OF:	  

		BOARD DATE:	  12 November 2009

		DOCKET NUMBER:  AR20090007788 


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 that his discharge with severance pay be changed to disability retirement.

2.  The applicant states he was discharged from the service due to an injury.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 13 December 2004.

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 military personnel records show he enlisted in the Regular Army on 20 April 2004 for a period of 6 years.  He was transferred to Fort Benning, GA for basic combat training.

3.  On 1 May 2004, the applicant injured his right shoulder while doing duffle bag raises and other strenuous overhead calisthenics.  On 12 October 2004, this injury was determined to be incurred in line of duty.

4.  On 7 September 2004, a Medical Evaluation Board (MEBD) found the applicant did not meet medical retention standards for right suprascapular (situated or occurring superior to the scapula [shoulder blade]) neuropathy (an abnormal and usually degenerative state of the nervous system or nerves) and right shoulder pain.  The MEBD referred the applicant to a physical evaluation board (PEB) for these conditions.  The applicant indicated he did not desire to continue on active duty and he agreed with the MEBD's findings and recommendation.

5.  The Narrative Summary (NARSUM) to the applicant's MEBD stated there was an obvious loss of range of motion in the right shoulder due to the suprascapular neuropathy.  The NARSUM states his forward flexion of the right shoulder was 130 degrees and limited by pain and 140 degrees actively.  Abduction of the right shoulder was 105 degrees with pain at the limits.

6.  On 25 October 2004, an informal PEB found the applicant unfit for duty due to right shoulder pain with decreased range of motion secondary to right suprascapular injury with atrophy of suprascapular muscle, rated as moderate and noted he was right hand dominant.  He was given an analogous rating (8599) under Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) diagnostic code 8519 (paralysis of long thoracic nerve) of 10 percent.

7.  The PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay if otherwise qualified.  The applicant concurred with the findings and recommendation of the PEB and waived his right to a formal hearing in his case.

8.  On 13 December 2004, the applicant was discharged due to disability with severance pay.  He had completed 7 months and 24 days of active service that was characterized as honorable.

9.  A letter, dated 29 September 2009, from the ABCMR advised the applicant he had the option of applying to the Department of Defense Physical Disability Board of Review (PDBR).  He was advised the PDBR was established to reassess the accuracy and fairness of the disability rating assigned to service members who were discharged since 11 September 2001 as unfit for continued military service with a combined rating of 20 percent or less and found ineligible for disability retirement.  He was advised he could apply to either the ABCMR or the PDBR; however, the decision of either board is final.  He was also advised that if he failed to respond with his election of which board he desired, the ABCMR would proceed with the processing of his case.  The applicant did not respond to this letter.

10.  Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD, in effect at the time, showed that for diagnostic code 8519 the disability rating for moderate incomplete paralysis of the long thoracic nerve is 10 percent.  The disability rating for complete paralysis of the long thoracic nerve; inability to raise arm above shoulder level, winged scapula deformity is 30 percent.

11.  Title 38 Code of Federal Regulations, Section 4.20, defines analogous ratings.  This Section states that when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the function are affected, but the anatomical localization and symptomatology are closely analogous.

12.  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 rated at least 30 percent.

13.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  In view of the applicant's failure to respond to ABCMR letter of 29 September 2009, his case was processed before the ABCMR as requested in his application.

2.  The applicant contends he should have received a medical retirement instead of a discharge with severance pay.

3.  The applicant agreed with the MEBD's findings and recommendation and he agreed with the findings and recommendation of the PEB.  He waived his right to a formal PEB.

4.  The findings and recommendations of the NARSUM and the PEB are consistent with a 10 percent disability rating for the applicant's right shoulder pain.  In order for him to receive a medical retirement he would have had to have been rated 30 percent for his condition.  A higher rating of 30 percent would require evidence showing he could not raise his right arm above his shoulder.  The NARSUM states his forward flexion of his right shoulder was 130 degrees and the abduction was 105 degrees.

5.  There is no evidence to support a 30 percent disability rating for the applicant's disability rating.  Therefore, the disability rating of 10 percent assigned by the PEB and his discharge with severance pay are determined to be correct.

6.  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 that 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)                                         AR20090007788





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ABCMR Record of Proceedings (cont)                                         AR20090007788



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