IN THE CASE OF:	  

		BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090016566 


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 the record be corrected to show he was placed on the Temporary Disability Retired List (TDRL) and medically retired.

2.  The applicant states that he was recommended numerous times for placement on the TDRL and denied.  He was subsequently medically discharged with severance pay for non-inflammatory myopathy of the lower extremities. Further, while assigned to the Warrior Transition Unit (WTU) in Heidelberg, Germany (with duty in Hanau) he attempted to appeal his Physical Evaluation Board (PEB) findings but his unit would not fund the travel to the board.  

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

* DD Form 215 (Correction of DD Form 214, Certificate of Release or Discharge from Active Duty), effective 20 May 2009
* DD Form 214, effective 17 February 2008
* Revised PEB Findings, dated 1 October 2008, reviewed after the National Defense Authorization Act (NDAA) of 2008

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 28 July 2004.  He was trained in and awarded military occupational specialty (MOS) 21C (Bridge Crewmember).  He was honorably discharged on 17 February 2008 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), disability with severance pay having completed 3 years, 6 months, and 20 days on active duty.

2.  On 15 September 2008, the Physical Disability Agency (PDA) reviewed the applicant's initial PEB findings, dated 26 October 2007, as a result of changes to NDAA 2008.  The PDA determined there was no change to the disability rating of 20 percent but did administratively correct the findings to show the disability had been incurred in a combat zone.

3.  On 1 October 2008, the applicant's revised PEB proceedings were approved for the Secretary of the Army by the appropriate authority. 

4.  In the processing of this case, an advisory opinion was provided by the PDA, which found no evidence of error or injustice and recommends denial of the applicant's request.  The PDA determined the PEB findings were correct and the applicant was not entitled to a rating higher than 20 percent or placement on the TDRL.

5.  In the advisory opinion, it was revealed that the applicant's Medical Evaluation Board (MEB) sole diagnosis was non-inflammatory myopathy and during a neurology exam conducted on 21 August 2007, a minor 4+/5 strength loss in his hip flexors, adductors, and abductors was indicated.  His gait was normal.  The condition was considered stable with a very gradual progression in symptoms in the future.  On 17 October 2007, the applicant concurred with the MEB's findings. 

6.  The advisory opinion further revealed on 26 October 2007, an informal PEB found the applicant unfit for his listed condition and rated it analogous to the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 8520, moderate nerve dysfunction of the sciatic nerve; 20 percent.  On              29 October 2007, the applicant was counseled on his appeal rights, to include his right to a formal hearing, and the applicant concurred with the PEB's findings and waived his right to a formal hearing.  The USAPDA advisory opinion states that units are required to provide transportation to Soldiers requesting formal PEB's and no one is denied the right to a formal PEB based on lack of unit funds.

7.  On 6 May 2010, the applicant was provided a copy of the USAPDA advisory opinion for review and the opportunity to submit comments or rebuttal.  The applicant provided a rebuttal to the advisory opinion on 21 May 2010, in effect, maintaining his original contention that he:

	a.  was recommended by the medical officer for placement on the TDRL to determine the specific type of myopathy he suffered from;

	b.  attempted to appeal the PEB findings but was denied travel to the board due to lack of unit funds; and

	c.  had additional conditions documented in his medical records that he wanted presented but was told only the myopathy would be considered by the board.

8.  The applicant was issued a DD Form 215 on 20 May 2009 with the following corrections to the DD Form 214, effective 17 February 2008:

* Item 26 (Separation Code) changed to read:  JFI
* Item 28 (Narrative Reason for Separation changed to read):  Disability Severance Pay Combat Related

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth the responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. 

10.  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.

11. Chapter 4 provides guidance on informal PEB procedures.  It states specifically that the Soldier has the option to concur with the findings or demand a formal hearing with or without personal appearance.  Paragraph 4-21 states when a Soldier requests a formal PEB hearing and fails to appear the PEB president can suspend the hearing to determine the reason for the Soldier's absence; however, if no reasonable excuse or circumstance exists the president may proceed with the hearing.

12.  The VASRD is the standard used by both the VA and the military to quantify a service member’s disability. The PEB uses the VASRD to assign a disability rating when the PEB finds a service member unfit.  The military’s disability rating is used to determine eligibility for certain military benefits such as separation pay and medical retirement.

13.  The VASRD code 8520 refers to paralysis of the sciatic nerve.  The schedule rates the condition at 10 percent for mild, 20 percent for moderate, and 40 percent for moderately severe dysfunctions of the sciatic nerve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his discharge changed to show he was placed on the Temporary Disability Retired List (TDRL) and medically retired was carefully considered but there is insufficient evidence to grant relief.

2.  On 26 October 2007, the applicant's case was considered by an informal PEB and the applicant accepted the board findings.  The applicant's examination found he had minor 4+/5 strength loss in his hip flexors, adductors, and abductors.  His gate was normal and his condition was considered stable.  While the PEB recognized that there would be gradual progression in symptoms, there is no evidence that at the time of his separation his condition was than moderate.  It appears his disability was properly rated in accordance with the VASRD.  

3.  The applicant received a 20 percent disability rating for a moderate nerve dysfunction of the sciatic nerve in accordance with the VASRD.  He did not meet the criteria for placement on the TDRL because his condition was stable, rated at less than 30 percent, and he had less than 20 years of service. His separation with severance pay was in compliance with applicable law and regulatory guidelines.  

4.  Notwithstanding the applicant's argument to the contrary, there is no evidence that he was denied travel, prohibited from having other medical conditions considered, or that he ever requested a formal hearing.  The applicant was advised of his option to elect a formal hearing and choose to accept the informal board findings.  In addition, the applicant was not required to be physically present in order to have his case presented before a formal PEB.  Therefore, it is presumed, that all requirements set forth by law and applicable regulations were met and that the applicant's rights were protected during his disability processing. 

5.  The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.  


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)                                         AR20090016566





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ABCMR Record of Proceedings (cont)                                         AR20090016566



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