IN THE CASE OF:	

		BOARD DATE:	6 October 2009  

		DOCKET NUMBER:  AR20090012972 


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 discharge with severance pay be corrected to placement on the Retired List for physical unfitness.  

2.  The applicant states, in effect, that he was injured on or about 20 August 1998 when a 500-pound object fell on him, injuring his shoulder.  He states the injuries from this accident left him with reduced movement and permanent nerve damage to his left arm.  He further states the many years he was in the military tore up his left knee, which resulted in knee replacement.  The applicant states that he underwent a medical evaluation board (MEB) at Darnall Army Hospital, Fort Hood, TX.  The MEB recommended separation saying he did not meet medical retention fitness standards.  He states he was separated in May of 2000 and he accepted $19,480.67 in severance pay after taxes.  He states he had over 
19 years of active and reserve service at the time of his separation.  He now believes he should have been offered an opportunity to medically retire.  He concludes his statement by saying he has served the government for more than 34 years as a civil servant and as a member of the Armed Forces, and he would like a retired military identification card to show that he has done his part. 

3.  The applicant provides the following documents in support of his application:  

	a.  copies of his DD Forms 214 (Report of Separation from Active Duty) with a separation date of 7 October 1976 and 30 June 1980 from the U.S Air Force; 
	
	

   b.  a copy of his DD Form 4/1 (Enlistment/Reenlistment Document of the 
Armed Forces of the United States), dated 10 July 1981;
	
   c.  a copy of his MEB, dated 21 April 2000; 

	d.  copies of a Standard Form (SF) 88 (Report of Medical Examination) and an SF 93 (Report of Medical History), dated 10 January 2000;

	e.  a copy of his DA Form 3349 (Physical Profile), dated 1 November 1999;

	f.  a copy of his informal Physical Evaluation Board (PEB) proceedings; 

	g.  a copy of his Line of Duty determination letter, dated 21 September 1998;

	h.  a copy of his Physical Disability Separation memorandum, dated 8 June 2000; and

	i.  a letter of inquiry from his Member of Congress and his self-authored statement.

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 entered the U.S. Air Force on 5 March 1973.  He completed initial entry training and he was awarded military specialty number 42652 (Jet Engine Mechanic).  He was honorably discharged on 7 October 1976 with
3 years, 7 months, and 4 days of active duty service.  The highest rank/grade he attained during this period of service was sergeant (SGT)/pay grade E-4.  The DD Form 214 he was issued on his date of separation shows no prior service.


3.  On 8 October 1976, the applicant reenlisted in the U.S. Air Force.  Records show he continued to serve as a jet engine mechanic and he was promoted to the rank/grade of staff sergeant (SSGT)/E-5.  On 30 June 1980, he was honorably discharged with 3 years, 8 months, and 23 days of active service and 
3 years, 7 months, and 7 days of prior service reported on his DD Form 214.   

4.  On 10 July 1981, the applicant enlisted in the U.S. Air Force Reserve (USAFR) for a 6-year period of service in pay grade E-5.  

5.  An AF Form 526 (ANG [Air National Guard]/USAFR Point Credit Summary) for the "closeout date" of 9 July 1985 shows the applicant had 4 years of qualifying service for nonregular retirement from 10 July 1981 to 9 July 1985.  This same form shows that the applicant had 7 years, 3 months, and 26 days of qualifying service for regular retirement based on his two active duty U.S. Air Force enlistment periods.  The form further shows that the applicant's total creditable service was 11 years, 3 months, and 26 days toward nonregular retirement.  

6.  The available military personnel records show that the applicant had an 
11-year break in service from on or about 9 July 1985 to his enlistment in the U.S. Army Reserve on 28 October 1996 for a 3-year period of service.  

7.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows that on 18 August 1998 the applicant dislocated his left shoulder while in an inactive duty for training status with his Army Reserve unit, Company M, 158th Aviation Regiment.  He was treated at Darnall Army Community Hospital on Fort Hood.  The injury was determined to be in line of duty.

8.  On 1 November 1999, the applicant was given a permanent physical profile for his left shoulder fracture with neuropathy, cervical spine degenerative joint disease on C-4 and C5, and left knee degenerative joint disease.  The applicant was profiled as a "3" for his upper extremities and a "3" for his lower extremities. 

9.  On 11 April 2000, the applicant underwent a physical examination for MEB proceedings.  The examining physician stated that the applicant was unable to perform duties within his military occupational specialty and that he was nondeployable for he could not kneel or lift items overhead.  The physician concluded that the applicant had maximized medical benefits and treatments and that his condition should be considered permanent.  

10.  On 21 April 2000, an MEB convened and determined that the applicant was medically unfit.  The MEB determined that the applicant's medical condition and 
physical defect did occur in the line of duty and that his medical condition did not exist prior to his entry on active duty.  The following conditions were found to be medically unfitting:

	a.  left proximal humerus fracture with musculocutaneous neuropathy or left shoulder pain with partial paralysis of the upper extremity; and 

	b.  degenerative joint disease including cervical spine C4-C5 and bilateral knees.

11.  On 28 April 2000, the applicant authenticated the MEB proceedings saying he agreed with the findings of the MEB and did not desire to continue on active duty.

12.  The MEB forwarded the applicant's records to the PEB for adjudication. 

13.  On 1 May 2000, an informal PEB found the applicant physically unfit under the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 8517 for musculocutaneous neuropathy status post fracture of the left humerus that was rated as moderate.  The PEB did not address the second diagnosis of degenerative joint disease of the cervical spine and knees.  The informal PEB recommended the applicant be discharged with severance pay, rated 10 percent. 

14. On 9 May 2000, the applicant concurred with the informal PEB's findings and waived his right to a formal hearing. 

15.  On 8 June 2000, the applicant was discharged with severance pay.  The applicant was credited with 9 years, 2 months, and 1 day of active federal service as computed under Title 10, U.S. Code, section 1208 and that he had 17 years,
1 month, and 11 days of service for basic pay as of 20 June 2000. 

16.  The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points), dated 31 July 2009, shows that as of 20 June 2000, the applicant had
10 years, 5 months, and 18 days of qualifying service for nonregular retirement.

17. In the processing of this application, on 4 September 2009, the U.S. Army Physical Disability Agency (USAPDA) provided an advisory opinion.  The opinion stated that the informal PEB erred when it did not address the second diagnosis of degenerative joint disease of the cervical spine and knees.  However, such error was not material, prejudicial, or a violation of any substantial administrative due process because of the following factors:

	a.  The degenerative joint disease would not have been found unfitting.  This condition was chronic and longstanding that was added to the MEB because of its debilitating residuals from the service-connected accident to his shoulder.  If the applicant had not had the injury to his shoulder, the degenerative joint disease would not have necessitated an MEB.  Only conditions that are found unfitting are compensable; and 

	b.  The applicant's MEB and medical file did not contain evidence to show that the degenerative joint disease was incurred in the line of duty, caused by the military, or was incurred while in an active duty status.  The evidence of record shows the degenerative joint disease was long standing with no direct connection to the applicant's military service.

18.  The advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.

19.  The applicant provided a rebuttal statement on 24 September 2009 to the USAPDA advisory opinion.  The applicant states, in effect, that he was taking 
several medications to get through the day and that these medications were related to the pain in his shoulder and both knees.  He further states that he suffered from depression during this time because he could no longer perform physical fitness training or any strenuous activity with his military unit.  He states that the U.S. Army (Reserve) did not offer him retraining into another military occupational specialty.  He states his unit leadership said he would not be promoted for he could not physically perform the required tasks.  He states that the PULHES for his military occupational specialty was 222222 and that his medical profile was 133111.  After his separation in 2000, he states that by the year 2004 he had his left knee replaced.  He concludes by stating he served to the best of his ability and that he should now be medically retired.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEB.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

21.  Title 38, Part 4 of the Code of Federal Regulations, Book C—Schedule for Rating Disabilities is a compilation of federal regulations affecting the Department 
of Veterans Affairs.  The VASRD code 8517 applies to the musculocutaneous 
nerve.  A 30 percent disabling rating is defined as complete paralysis, defined in the VASRD as weakness but not loss of flexion of elbow and supination of the forearm; a 20 percent disabling is defined as incomplete paralysis that is severe; a 10 percent disabling is defined as moderate; and mild paralysis is not rated in the VASRD.  

22.  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.

23.  Title 10, U.S. Code, sections 12731 through 12739, authorizes retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he should have been retired due to physical disability, but he does not state why he believes his disability rating was in error.  In order to be retired for physical disability, he would have had to have been rated at least 30 percent disabled.

2.  The applicant's condition, musculocutaneous neuropathy status post fracture of the left humerus, was rated as moderate under VASRD code 8517.  As for his degenerative joint disease, the informal PEB erred when it did not address this condition.  However, the applicant did concur with the informal PEB's findings and choose not to appeal the informal PEB's findings to a formal PEB.  The informal PEB recommended a combined rating of 10 percent and separation with severance pay.  The applicant accepted the severance pay and he was separated from the Armed Forces.  

3.  The USAPDA stated that while the PEB should have considered the applicant's degenerative joint disease, the failure to do so did not affect the outcome of the case.  There is no record of evidence and the applicant did not provide any to show his degenerative joint disease was disqualifying or service-connected.

4.  While the applicant states he had over 19 years of active and reserve service, his records show that he only had 10 years, 5 months, and 18 days of qualifying service.  As such, he had served a little over half the service required to retire for nonregular service. 

5.  Without evidence to show that the applicant was rated incorrectly, or that he was physically unfit due to another condition that was not rated, there is insufficient evidence to grant the applicant's 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)                                         AR20090012972



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ABCMR Record of Proceedings (cont)                                         AR20090012972



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