IN THE CASE OF:	  

		BOARD DATE:	  22 April 2010

		DOCKET NUMBER:  AR20090013523 


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 retirement status be changed from Temporary Disability Retired List (TDRL) to Permanent Disability Retired List (PDRL) based on the 2008 National Defense Authorization Act (NDAA).

2.  The applicant states that he is entitled to placement on the PDRL based on a change in the law directed by the 2008 NDAA.

3.  The applicant provides:

* TDRL orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Army Physical Disability  Agency (PDA) letter

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently on the TDRL with a total disability rating of 40 percent for:

* Posttraumatic Stress Disorder (PTSD)
* Chronic Low Back Pain
* Chronic Cervical Pain

2.  The applicant was notified by the PDA that changes in the law resulting from the 2008 NDAA altered the way Soldiers with certain conditions were rated.  The letter further indicated that the applicant met the criteria and had the guidance been in place at the time his case was adjudicated he would have been rated as follows:

* 30 percent PTSD
* 20 percent Lumbar Disc Disease
* 20 percent Bilateral C8 Radiculopathy (right and left arms)
* 10 percent Bilateral Lumbosacral Radiculopathy (right and left legs)
* 10 percent Degenerative Arthritis and Disc Disease of Cervical Spine

3.  The PDA concluded the applicant would have received a combined total rating of 80 percent and been placed on the PDRL.  The applicant was informed that since he was on the TDRL, the PDA did not have the authority to correct his records.

4.  After consulting with the operations officer at the PDA, it was revealed the applicant is still on the TDRL and awaiting reevaluation.  The operations officer also opined that under the new guidance, the applicant would have been found to have two additional unfitting conditions rated at 20 percent each.

5.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

   a.  Paragraph 3–9 provides guidance for the TDRL.  Specifically, it states the TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, 
grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208 (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable.

   b.  Paragraph 4-17 provides guidance for  PEBs.  Specifically, it states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendation may be revised. 

6.  The Department of Veterans Affairs Schedule for Ratings Disabilities (VASRD), section 4.129, provides information regarding mental disorders due to traumatic stress.  Specifically, it states that when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six-month period following the veteran’s discharge to determine whether a change in evaluation is warranted.

7.  The 2008 NDAA, section 3.1, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the Department of Veterans Affairs.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and determined to have partial merit.

2.  The 2008 NDAA provided that the VASRD must be utilized during the medical evaluation of military personnel.  The applicant's diagnosis of several conditions including PTSD warrants amendment of his PEB findings based on the application of the VASRD.

3.  The applicant's disability ratings should therefore be reevaluated and he should be placed on the TDRL at the higher disability rating retroactive to the date initially placed on the TDRL.

4.  Based on the fact the applicant is currently on the TDRL and awaiting medical reevaluation of his conditions, it would be premature to act on his request for placement on the PDRL.

5.  The Defense Finance and Accounting Service should audit the applicant's pay account and ensure appropriate payment as a result of the above corrections.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by having the PDA:

* reevaluate his disability ratings in accordance with the VASRD 
* amend his PEB findings to show the appropriate rating(s)
* amend his assigned disability ratings while on the TDRL as a result of the correction to the PEB findings retroactive to his placement on the TDRL.

2.  The Defense Finance and Accounting Service should audit the applicant's pay account and ensure appropriate payment as a result of the above corrections.  

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to placement on the PDRL at this time.  




      _______ _  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)                                         AR20090013523



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ABCMR Record of Proceedings (cont)                                         AR20090013523



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