IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090013124 


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 records to show he was placed on the permanent disability retired list (PDRL) as of the date of his discharge.

2.  The applicant states that he was medically retired and he was never placed on the PDRL.  He believes he qualifies for TRICARE benefits for his wife.  He adds that he may also be eligible for concurrent disability and retired pay due to him as he is rated 100 percent service-connected disabled by the Department of Veterans Affairs (VA).

3.  The applicant provides a copy of his DA Form 8-118 (Medical Board Proceedings), dated 4 October 1974, and a copy of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 15 October 1974; in support of his request.

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 records show he enlisted in the Regular Army for a period of 3 years on 19 March 1971.  He completed basic combat and advanced individual training and was initially awarded military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist).  He was also trained in and was awarded MOS 76R (Missile Repair Parts Specialist).  The highest rank/grade he attained was private first class (PFC)/E-3.  

3.  On 7 March 1973, while stationed at Fort Eustis, VA, the applicant strained his back while he was picking up a chair and was subsequently hospitalized and treated at McDonald Army Hospital.  

4.  On 3 June 1974, after having been reassigned to Fort Bliss, TX the applicant complained of recurrent pain in the right leg, low back, and left flank.  He was admitted to William Beaumont Army Medical Center (WBAMC) where it was noted that he had a right L4-5 epidural defect with impingement on the right L-4 nerve root.  He subsequently underwent a right L4-5 diskectomy and after a noticeable improvement, he was discharged on convalescent leave.  However, he returned early from leave and complained of low back pain radiating into the right lower extremity.  The applicant’s Narrative Summary (NARSUM), dated 3 June 1974, shows that his attending physician diagnosed him as having status postoperative L4-5 diskectomy times 2, postoperative epidural scarring with possible recurrent lumbar disc, hysterical neurosis, and psychophysiological musculoskeletal disorder.  He was recommended for referral to a medical evaluation board (MEBD) to determine the extent of his disability 

5.  On 4 October 1974, an MEBD convened at WBAMC, Fort Bliss, TX, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD found that the applicant was diagnosed as having the non-medically acceptable conditions of status postoperative L4-5 diskectomy times 2, postoperative epidural scarring with possible recurrent lumbar disc, acute hysterical neurosis manifested by paralysis of the lower extremities of four days duration, and chronic psychophysiological musculoskeletal disorder manifested by low back pain.  The MEBD recommended that he be referred to a PEB.  The applicant agreed with the MEBD’s findings and recommendation and indicated that he did not desire to continue on active duty. 




6.  On 15 October 1974, an informal PEB convened at Walter Reed Army Medical Center (WRAMC), Washington, DC, and found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to intervertebral disc syndrome L4-5 following diskectomy times 2 with abnormal EMG and severe recurring attacks with intermittent relief, with associated conversion reaction and psychophysiologic musculoskeletal disorder.  The PEB noted the applicant’s physical impairments brought about by his back disorder were of such a nature that evaluation of a permanent degree of severity was not possible.  He was awarded a 40-percent disability rating.  Accordingly, the PEB recommended placing the applicant on the temporary disability retired list (TDRL).  On 
18 October 1974, the applicant concurred with the PEB’s finding and recommendation and waived his right to a formal hearing.

7.  On 15 November 1974, the applicant was honorably retired in the rank/grade of PFC/E-3.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was retired in accordance with Title 10, U.S. Code, section 1202, by reason of temporary physical disability.  This form further shows he completed 3 years, 7 months, and 23 days of creditable active service. 

8.  On 7 April 1976, the applicant underwent a TDRL reevaluation.  His NARSUM, dated 12 April 1976, shows that his condition had improved since his last hospitalization and he was on a back exercise program at the time.  The attending physician recommended the applicant remain on the TDRL with reevaluation in 1 year. 

9.  On 14 May 1976, a TDRL PEB convened at WRAMC, Washington, DC, and determined that the applicant’s intervertebral disc syndrome L4-5 following diskectomy times 2 with abnormal EMG and severe recurring attacks with intermittent relief with associated conversion reaction and psychophysiologic musculoskeletal disorder continued to preclude him from reasonable fulfillment of the purpose of his employment in the Army.  The PEB determined that the applicant remained unfit, awarded him a 10-percent disability rating, and recommended separation from the Army with entitlement to severance pay.  On 28 May 1976, the applicant did not concur with the TDRL findings and recommendation and demanded a formal hearing with a personal appearance.  

10.  On 13 July 1976, a formal TDRL PEB convened at WRAMC, Washington, DC, to evaluate the applicant’s medical condition and determine whether he was unfit because of physical disability to perform the duties of his office, grade, rank, or rating, and determine whether he was entitled to disability benefits.  After a careful review of the medical records and the applicant’s testimony and consideration of his counsel’s remarks, the PEB adhered to its original conclusion that the applicant’s condition continued to preclude him from reasonable fulfillment of the purpose of his employment in the Army.  The PEB again recommended separation with entitlement to severance pay if otherwise qualified.  

11.  On 17 August 1976, the applicant elected not to agree with the recommendations of the formal TDRL PEB and submitted a rebuttal in which he appealed to the PEB to reconsider its decision.  

12.  On 20 August 1976, after considering the applicant’s rebuttal, the PEB confirmed the formal board action, and on 7 September 1976, the applicant was removed from the TDRL.

13.  Army Regulation 635-40 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 office, grade, rank, or rating.  It provides for medical evaluation boards, 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.  

14.  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 VA Schedule for Rating Disabilities (VASRD).  Army Regulation 635-40, Appendix B, modifies those provisions of the rating schedule inapplicable to the military and clarifies rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.  

15.  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 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 less than 30 percent.  




16.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA 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 VA does not have authority or responsibility for determining physical fitness for military service.  The VA 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 VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

17.  The National Defense Authorization Act (NDAA) of 2008, Section 642 expanded the eligibility requirements for Concurrent Retirement Disability Payment (CRDP).  Retirees who were rated by the DVA as unemployable, generally referred to as Individual Unemployability (IU), and are in receipt of VA disability compensation as a result will become eligible to receive full concurrent receipt of both their VA compensation and retired pay.  This section of the Act is effective 1 October 2008 and is retroactive to 1 January 2005.  To qualify for the CRDP entitlement, the retiree must have 20 years of service or retired under Temporary Early Retirement Authority (TERA), must be in receipt of retired pay, in receipt of VA compensation, and rated 50 percent or higher by the VA.  Those rated by the VA as IU, are compensated at the 100 percent rate in accordance with the VA disability compensation basic rates.  Payment is not a separate payment but reduces the dollar for dollar offset that retirees give up for every dollar they receive from the VA.  This will eliminate the offset and give retirees in this category all of their retired pay, and they will continue to receive the VA compensation as they have been all along.  In addition, to receive the additional compensation amount the retiree must be receiving compensation at a disability rating not less than 60 percent and be rated IU. 

18.  TRICARE is the health care program serving active duty service members, National Guard and Reserve members, retirees, their families, survivors and certain former spouses worldwide.   As a major component of the Military Health System TRICARE brings together the health care resources of the uniformed services and supplements them with networks of civilian health care professionals, institutions, pharmacies and suppliers to provide access to high-quality health care services while maintaining the capability to support military operations.  To be eligible for TRICARE benefits, a member must be registered in the Defense Enrollment Eligibility Reporting System (DEERS).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was placed on the PDRL as of the date of his discharge.

2.  The evidence of record shows the applicant sustained a back injury and subsequently underwent an MEBD which recommended he be given a PEB.  He agreed with this recommendation.  The PEB found his back condition prevented him from performing his duties and determined that he was physically unfit for performance of military duty by reason of physical disability but his condition had not sufficiently stabilized at the time to permit an accurate assessment of a permanent degree of disability.  Therefore, the PEB recommended placing him on the TDRL by reason of temporary disability.  The applicant concurred.

3.  Upon reevaluation, a TDRL PEB determined the applicant’s medical condition continued to preclude him from reasonable fulfillment of the purpose of his employment in the Army and that he remained unfit and recommended separation from the Army with entitlement to severance pay.  The applicant did not concur and demanded a formal hearing with a personal appearance.  

4.  A formal TDRL PEB subsequently convened to evaluate his medical condition to determine whether he was unfit because of physical disability to perform the duties of his office, grade, or rating, and to determine whether he was entitled to disability benefits.  After a careful review of the medical records, the applicant’s testimony, and his counsel’s remarks, the PEB adhered to its original conclusion that the applicant’s condition precluded him from reasonable fulfillment of the purpose of his employment in the Army.  Again the recommendation was separation with entitlement to severance pay if otherwise qualified.  

5.  The applicant did not concur and submitted a rebuttal in which he appealed to the PEB to reconsider its decision.  However, after considering his rebuttal, the PEB confirmed the formal board action, and he was accordingly removed from the TDRL and separated with entitlement to severance pay.  Since he was rated at less than 30 percent, he could not have been placed on the PDRL.   

6.  The applicant now believes he should have received full retirement for his low back pain because the VA granted him 100 percent service-connected disability compensation.  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 VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  

7.  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 Physical Disability Evaluation System.  The applicant was properly rated at 10 percent for his chronic back pain.  There is no evidence to support a higher rating or medical retirement.

8.  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.  

9.  CRDP provides for an individual to receive both military retirement pay/benefits and VA disability compensation.  Up until 2004 this was forbidden.  However, since the applicant is not a retired member of the armed forces, concurrent receipt does not apply in his case. 

10.  To be eligible for TRICARE benefits an individual must be registered in DEERS.  The applicant is not serving on active duty, in the National Guard, or in the U.S. Army Reserve and he is not a retiree; therefore, it appears she does not qualify for enrollment in DEERS and he is not eligible for TRICARE benefits.

11.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, 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.  Therefore, the applicant is not entitled to 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)                                         AR20090013124



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ABCMR Record of Proceedings (cont)                                         AR20090013124



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