IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20090020853 


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 change of his disability, with severance pay discharge to a medical retirement.

2.  The applicant states:

* he was discharged from the Army in June 2003
* he received his discharge orders in March 2003
* from March 2003 to June 2003, he was never told or given the opportunity to retire
* within a 3-month period he and his family were basically put on the street with no guidance

3.  The applicant provides a copy of his :

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* discharge orders 

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 enlisted in the Regular Army on 12 July 1990 and trained as a combat engineer.

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 18 November 2002, shows the applicant injured his right shoulder on 21 May 1995 in Germany.  This form indicates the applicant was putting sand bags into a truck and he felt his right shoulder pop out and then pop back in.  Ice was placed onto his shoulder for a couple of days, with no help.  He went to sick call on 
24 May 1995.  Medical records show the applicant underwent reconstructive surgery on his right shoulder in September 2001.

4.  On 30 January 2003, a Medical Evaluation Board (MEB) diagnosed the applicant with chronic right wrist pain secondary to scaphoid cyst; and right shoulder pain, secondary to instability and operative reconstruction (capsular shift).  The MEB recommended referral to a Physical Evaluation Board (PEB).  On 21 January 2003, the applicant agreed with the findings and recommendations.  

5.  On 11 February 2003, an informal PEB found the applicant physically unfit due to:

   a.  chronic right (non-dominant) shoulder, limitation of range of motion, pain with a history of dislocations and ultimately corrective surgery, Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5201, 20 percent (%).  The Soldier is using pain medications for this condition.  His physical examination notes passive abduction to 80 degrees.  The shoulder x-rays, pre-operative, were normal; and 
   
   b.  right (non-dominant) wrist pain believed to be secondary to x-ray diagnosed 3 scaphoid bone cysts, VASRD codes 5099 and 5015, 0%.  The physical examination notes essentially normal ranges of motion.



6.  The PEB recommended a combined rating of 20% and that the applicant be separated with severance pay.  On 27 February 2003, the applicant concurred with the PEB’s findings and waived a formal hearing.

7.  In March 2003, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB’s findings and recommendations.

8.  On 13 June 2003, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation, paragraph 4-24b(3), by reason of disability, with severance pay.  His DD Form 214 shows a severance pay entitlement amount of $54,799.20.  He had completed 12 years, 11 months, and 2 days of creditable active service.

9.  On 12 May 2010, the applicant was notified of his option to apply to either the Army Board for Correction of Military Records (ABCMR) or the Department of the Defense Physical Disability Board of Review (PDBR) to reassess the accuracy and fairness of the disability rating assigned to him.  The decision of either Board is final.  On 20 May 2010, the applicant elected to continue with his application for disability review by the ABCMR.

10.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

11.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

13.  The VASRD states, in pertinent part, that VASRD Code 5201 (Arm, limitation of motion of) is rated at 20% (major/minor) when at shoulder level; at 30% 


(major) when midway between side and shoulder level; and at 40% (major) when "to 25 degrees from side" and 30% (minor).

14.  VASRD states the diseases under diagnostic codes 5013 through 5024 will be rated on limitation of motion of affected parts.

15.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30% disabling.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the PEB found him physically unfit due to only two conditions -- chronic right (non-dominant) shoulder, limitation of range of motion, pain with a history of dislocations and ultimately corrective surgery; and right (non-dominant) wrist pain believed to be secondary to x-ray diagnosed 3 scaphoid bone cysts.  No other conditions were found disqualifying.  He concurred with the PEB's findings on 27 February 2003.

2.  Although the applicant contends he should have been medically retired, there is no evidence of record which shows his shoulder condition (with a range of motion to almost shoulder level) or wrist pain (with essentially a normal range of motion) met the criteria for a higher rating of 30% or more.

3.  There is insufficient evidence to show the applicant’s disabilities were improperly rated by the PEB or that his separation with severance pay was not in compliance with law and regulation.  Therefore, there is insufficient evidence to grant the applicant's requested 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)                                         AR20090020853



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ABCMR Record of Proceedings (cont)                                         AR20090020853



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