BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20090016488 


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 an increase in his Army disability rating.

2.  The applicant states the physical evaluation board (PEB) ignored conditions that included heart issues, severe sleep apnea, severe chronic back and shoulder pain, severe post-traumatic stress disorder (PTSD), which originated during the Vietnam conflict, and other injuries as a result of 36 years of service.  He continues that he was given a 90-percent disability rating by the Department of Veterans Affairs (VA) and is requesting a change of his disability rating from 10 percent to 30 percent so he can get his retirement benefits reinstated and pay off his disability severance pay debt.

3.  The applicant provides service medical records in support of his application.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the Army National Guard, the applicant enlisted in the U.S. Army Reserve on 31 January 1985.  He was ordered to active duty effective 18 October 2001.

2.  On 8 February 2005, a medical evaluation board (MEB) determined the applicant did not meet retention standards because of a diagnosis of spinal stenosis and facet arthropathy and obstructive sleep apnea.  The applicant agreed with the MEB's findings on 30 March 2005.  He was referred to a PEB.

3.  On 31 March 2005, an informal PEB found the applicant unfit for his back pain with a disability rating of 10 percent and for sleep apnea with a disability rating of zero percent.  The applicant non-concurred and requested a formal PEB.

4.  On 27 April 2005, a formal PEB found the applicant unfit for duty due to chronic subjective low back pain.  He was recommended for separation with a 10-percent disability rating.  He was advised that, as a Soldier with a rating of less than 30 percent who may have at least 20 qualifying years for Reserve retirement, he had the option of accepting disability severance pay and forfeiting his Reserve retirement, or requesting transfer to inactive Reserve status and receiving Reserve retired pay at age 60.  He concurred with the PEB findings and on 29 April 2005, elected to be discharged with entitlement to receive severance pay.

5.  Headquarters, III Corps and Fort Hood, Fort Hood, Texas, Orders Number 138-0202, dated 18 May 2005, directed the applicant's discharge from the USAR with entitlement to disability severance pay effective 24 May 2005.

6.  U.S. Army Human Resources Command (HRC), St. Louis, Missouri, Orders C-01-600428, dated 6 January 2006, directed the applicant's reassignment to the Retired Reserve effective 29 December 2005.

7.  HRC, St. Louis, Missouri, Orders P01-780161, dated 9 January 2007, directed the applicant's retirement and placement on the Retired List effective 22 January 2007.

8.  HRC, St. Louis, Missouri, Orders P01-780161R, dated 2 July 2007, directed the revocation of the orders directing the applicant's placement on the Retired List.  The reason for the revocation is listed as "drew severance pay."

9.  In a letter from the Defense Finance and Accounting Service (DFAS), dated 4 August 2008, addressed to the applicant's Representative in Congress, DFAS states the applicant met the qualifications for military retired pay; however, he was receiving military retired pay and disability severance pay and he cannot receive both.  The applicant was placed on their retired rolls on 22 January 2007 and received retired pay from 1 February 2007 to 3 July 2007.  The DFAS letter further states that upon notification that the applicant's retirement orders had been revoked, they suspended his retired pay account and based on this information, the applicant is not retired nor is he listed as active duty and is not eligible for concurrent retirement or disability pay.

10.  In the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The advisory opinion states the following:

	a.  The applicant is requesting that his military disability findings of separation with severance pay be changed to permanent disability retirement based on his claim that the PEB did not rate him for all of his conditions that existed at the time of his separation.

	b.  The 8 February 2005 MEB only listed two conditions and the applicant's chief complaint to the MEB examiner was his low back pain.  The applicant listed several other symptoms on his DD Form 2807-1 (Report of Medical History), but the medical examiner noted that only the back pain and sleep apnea failed medical retention standards at the time.  The applicant's physical profile only listed duty limitations for the two MEB-listed conditions and his commander only related that his back condition prevented him from setting an example to the troops under his supervision.  The applicant concurred with the MEB findings.

	c.  An informal PEB found the applicant unfit for back pain and rated it at 10 percent in accordance with the Veterans Affairs Schedule for Rating Disabilities.  The applicant did not concur and requested a formal PEB.  On 27 April 2005, the formal PEB found the applicant unfit for back pain with a rating of 10 percent.  The applicant's sleep apnea was not found to be unfitting.

11.  The USAPDA concluded that the applicant's back condition was properly rated at 10 percent and all other conditions were not significantly affecting the applicant's duty performance in 2005 and recommended no change to the applicant's disability rating.

12.  A copy of the advisory opinion was provided to the applicant for comment and/or rebuttal.  The applicant responded, in part, that he is not asking for or was ever asking for permanent disability retirement.  He only needed temporary disability retirement to cover the period from 24 May 2005 to 22 January 2007 at which time he would have been eligible for the benefits he earned as a veteran of 36 years of honorable service in the U.S. Army.  The disabilities rated by the VA were documented while out-processing at the Fort Hood transition point.  The VA rated his service-connected disability at 90 percent.  He was of the opinion he could pay back the severance pay and had no idea that taking the severance pay would wipe out all the benefits he earned.  The VA has been collecting $400.00 per month since 1 June 2005 to settle his severance pay debt and he would like to think the Army he served honorably for 36 years could do the same.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

14.  Paragraph 3-9 of Army Regulation 635-40 provides guidance for the Temporary Disability Retirement List (TDRL).  Specifically it states that 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.  In addition, the condition must be determined to be temporary or unstable.

15.  Title 38, U.S. Code, sections 310 and 331, permit 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 physically unfit 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request, in his rebuttal to the advisor opinion, to be placed on the TDRL for the period 24 May 2005 to 22 January 2007 has been carefully reviewed.

2.  Records show the applicant was separated for an unfitting medical condition; however, this condition only warranted a 10-percent disability rating.  As a result, he was not eligible for placement on the TDRL.

3.  The applicant contends that he received a 90-percent disability rating by the VA.  The rating action by the VA does not necessarily demonstrate error or injustice in the Army's rating.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.

4.  There is insufficient evidence to show the applicant's PEB disability rating is incorrect or that his separation with severance pay was not in compliance with law and regulation.  

5.  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:

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)                                         AR20090016488



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ABCMR Record of Proceedings (cont)                                         AR20090016488



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