IN THE CASE OF:	

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090014836 


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 to be afforded processing by the Physical Disability Evaluation System (PDES).

2.  The applicant states that at the time he waived processing by the PDES in order to leave Walter Reed Army Medical Center (WRAMC), he did not know the extent of his injuries or how much information was missing from his records.  He states that when he was released from WRAMC it was for the intention of retirement.  He was counseled by the releasing doctor, but at the time he was just 5 1/2 months out of brain surgery.  He was not thinking properly nor was he prepared for the minimum 1 1/2 years he would have to wait at WRAMC for a medical board to convene in his case, which was the approximate waiting time during his stay at WRAMC.

3.  The applicant provides an attached explanation sheet with his application as well as:

* a letter from the Physical Disability Board of Review (PDBR)
* a privacy release authorization form
* a copy of orders releasing him from active duty (REFRAD)
* a release from medical attention
* a letter from a civilian chiropractor in Amarillo, Texas, dated 1 May 2008
* a copy of a physical profile
* a copy of a disqualification letter from his employer
* a copy of his line-of-duty determination
* a copy of an unsigned letter related to his injury from his unit
* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty and his DD Form 215 (Correction to DD Form 214)
*  a copy of his Department of Veterans Affairs (VA) Rating Decision
* a copy of an electronic mail message regarding his PDBR application and a letter to his Congressional representative from the PDBR

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 was born on 8 October 1946 and was serving as a U.S. Army Reserve (USAR) food service operations noncommissioned officer in the pay grade of E-7 when he was ordered to active duty in support of Operation Iraqi Freedom on 14 September 2004.  He deployed to Iraq on 14 September 2004 and in mid-August 2005 he was injured when he fell into an irrigation ditch at Forward Operating Base (FOB) Caldwell.  He was initially treated at the medical facility at FOB Caldwell until it was determined that he should be evacuated to a better-equipped facility to assess the extent of his injuries.  He was evacuated to Landstuhl Regional Medical Center in Germany where it was determined that he had a tumor that ran from the top of his brain to the top of his spine.  He was then transferred to WRAMC and the tumor was successfully removed.  However, he still had pain in his right hip and foot that resulted from the fall.

3.  On 29 September 2005, the applicant submitted a DD Form 108 (Application for Retired Pay Benefits) requesting non-regular retirement on 8 October 2006 when he turned age 60.

4.  After a period of recovery, the applicant was released from WRAMC on 31 March 2006 and was transferred to Fort Jackson, South Carolina, where he was honorably REFRAD on 16 April 2006 due to completion of required service.  He had served 1 year, 7 months, and 3 days of active service during that deployment.

5.  On 11 August 2006, his application was approved and he was placed on the Retired List in the pay grade of E-7 on 8 October 2006.  He had reached his mandatory retirement date by virtue of having reached age 60.

6.  The VA rating decisions provided by the applicant show that the applicant filed his claim on 30 August 2006 and on 3 August 2007.  The VA gave the applicant a 40-percent combined rating for post-traumatic stress disorder (30 percent), surgical scar (10 percent), and post-operative benign brain tumor with residuals (10 percent).

7.  On 25 January 2008, the VA gave him a combined rating of 60 percent for post-traumatic stress disorder (30 percent), degenerative joint disease at L4-5 and L5-S1 (claimed as a back injury due to fall) (10 percent), left knee osteoarthritis (claimed as knee injury due to fall) (10 percent), bilateral tinnitus (10 percent), surgical scar (10 percent), and post-operative benign brain tumor with residual imbalance (10 percent).

8.  On 9 June 2009, the applicant submitted an application for review by the PDBR.  However, his application was returned without action because it was determined that he was not eligible for review by that board.  He was advised to apply to this Board.

9.  A review of the available records fails to show any documents associated with disability processing for the applicant.  However, the physical profile provided by the applicant indicates that the applicant was counseled by the profiling officer and his case manager and elected to waive medical evaluation board processing in lieu of retirement in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

10.  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.  It provides, in pertinent part, that Soldiers being processed under the PDES will be advised that when a Soldier has a rating of less than 30 percent and has at least 20 qualifying years for retirement for non-regular service, they have the option of accepting discharge with disability severance pay and forfeiting retirement for non-regular service or they may request transfer to the Retired Reserve and receive retired pay at age 60.  Individuals who elect to receive disability severance pay will forfeit their rights to retired pay.

11.  Title 38, U.S. Code, sections 310 and 331, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

12.  There is a difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based upon the individual's ability to perform the duties of his or her grade, rank, or rating.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA's ratings are based upon an individual's ability to gain employment as a civilian and may fluctuate over a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  It appears the applicant was properly informed of his rights at the time and elected to waive his right to processing under the PDES in favor of a non-regular retirement.

2.  The applicant's contention that he was unaware of the extent of his injuries at the time and the amount of actual data documented in his records has been noted; however, had he undergone the PDES processing at the time, it is reasonable to presume that his issues would have surfaced.  Unfortunately, the applicant was not willing to wait for the process to run its course.

3.  Accordingly, it is not reasonable for this Board to attempt to consider or direct consideration of his case 4 years after the fact without sufficient specific evidence of any error or injustice that the applicant believes exists in his case.  Therefore, there is no basis to approve the applicant's request for an evaluation under the PDES that he previously waived.

4.  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:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________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)                                         AR20090014836



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ABCMR Record of Proceedings (cont)                                         AR20090014836



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