IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20090021005 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired.

2.  The applicant states:

	a.  When he was medically released from the military after two Physical Evaluation Boards (PEBs), he was rated incorrectly because of the inability to evaluate all conditions properly.  [He was given a 20 percent (%)] rating with many conditions that were listed but not rated.  There has been no change in the issues but the ways of evaluating and testing to confirm the conditions did.  He should have been medically retired, not just found unfit.

	b.  He proudly served in the military up until his medical separation and he believes as a disabled veteran with an 80% disability rating from the Department of Veterans Affairs (VA) he should be able to have the rights and privileges of those who have served their entire lives.

	c.  He would have retired in the military if he had been physically able to as his father did.  He also has had significant troubles maintaining employment and relationships in his life due to the conditions incurred while serving on active duty and he believes he has the right to expect the military to stand behind him.


	d.  The following conditions were listed in the PEB Proceedings, but not rated:

* ocular tremor (oscillopisa)
* post-concussive syndrome
* headaches secondary to post-concussive syndrome
* lower back pain and patellofemoral pain (right knee)
* left ankle pain
* right wrist pain

	e.  The PEBs gave each of the following conditions a 10% rating:  post-concussive syndrome following trauma with ocular tremor and headaches unresponsive to medicine.

	f.  The DVA gave the following conditions the ratings indicated:

* tinnitus secondary to traumatic brain injury (TBI) - 10%
* depression disorder - 30%
* migraines with vertigo, disequilibrium - 30%
* cervical spine degenerative disc disease - 10%
* lumbar strain - 10%
* right knee patellofemoral pain - 10%
* bilateral micro-saccadic flutter - 10%
* TBI - 50%

3.  The applicant provides copies of:

* PEB and Medical Evaluation Board (MEB) Proceedings with supporting documentation
* his DD Form 214
* VA Forms 21-4138 (Statement in Support of Claim) completed by him and his wife
* clinical records of post-service medical treatment
* his VA rating decision
* the VA notification letter informing him of the amount of his monthly entitlement

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's complete service and medical records are not available to the Board for review.  However, the records provided by the applicant are sufficient to conduct a fair and impartial review of this case.

3.  The applicant enlisted in the Regular Army on 5 January 1993 and he was trained in and awarded military occupational specialty 68H (Aircraft Pneudraulics Repairer).

4.  A DA Form 3947 (MEB Proceedings) shows on 28 June 1995, an MEB found the applicant had several conditions which were incurred while entitled to base pay, did not exist prior to service, and were permanently aggravated by service.  Those conditions were:

* ocular tremor causing oscillopsia of unknown etiology, moderated to severe
* post-concussive syndrome
* daily headaches, unresponsive to medications, secondary to [post-concussive syndrome]
* low back pain
* right knee patellofemoral pain
* left ankle/foot pain of questionable etiology
* right wrist pain

5.  The MEB recommended referral of the applicant to a PEB.  On 17 July 1995, the MEB findings were approved, and on 11 August 1995 the applicant signed the DA Form 3947 and indicated he agreed with the MEB's findings and recommendation.  The MEB Proceedings indicate the applicant did not desire to continue on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).



6.  The applicant provided the first page of a DA Form 199 (PEB Proceedings), dated 22 August 1995, showing a PEB found him unfit for post-concussive syndrome following minor trauma with ocular tremor and headaches with normal brain MRI (magnetic resonance imaging).  The PEB recommended giving the applicant a disability rating of 10% and separation with severance pay.  The PEB found the other MEB diagnoses not unfitting.

7.  A second DA Form 199 provided by the applicant shows, on 11 October 1995, he appeared with counsel before a PEB in a formal hearing.  This PEB found the applicant unfit for post-concussive syndrome following minor trauma with ocular tremor and headaches with normal brain MRI unresponsive to medications.  The PEB recommended giving him a disability rating of 20% and separation with severance pay.  The PEB found the other MEB diagnoses not unfitting.  The applicant concurred with the PEB findings and recommendation.

8.  On 20 November 1995, the applicant was honorably discharged for disability with severance pay.  He completed 2 years, 10 months, and 16 days of total active service.

9.  The VA Forms 21-4138 completed by the applicant and his wife and the clinical records of post-service medical treatment confirm that he continues to experience symptoms of the conditions diagnosed by the MEB.

10.  On March 16 2009, the VA informed the applicant his disability rating had been increased to a combined rating of 80%.

11.  On 6 May 2010, in the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency.  The advisory official noted the applicant did not provide any evidence of MEB or PEB error, stating that the VA ratings awarded in 2009 are not evidence of error in a PEB that was held in 1995.

12.  The advisory opinion was forwarded to the applicant to allow him the opportunity to submit comments or a rebuttal.  He did not respond to the advisory opinion.

13.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30%.


14.  Title 10, U.S. section 1203, provides for the physical disability separation of a member who has less than 20 years active service and a disability rated at less than 30%.

15.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

16.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD).  Department of Defense Instruction (DODI) 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  A rating can range from 0 to 100%, rising in increments of 10%.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request to change his discharge for disability to a medical retirement.

2.  The applicant underwent an MEB which recommended his referral to a PEB.  He concurred with the findings and recommendation and indicated he did not desire to continue to serve in the U.S. Army.

3.  The applicant appeared before a formal PEB which found him to be unfit for further military service and assigned him a total disability rating percentage of 20% for post-concussive syndrome following trauma with ocular tremor and headaches unresponsive to medications.  The PEB recommended the applicant's disability separation with severance pay, if authorized.  The applicant concurred with the recommendation.

4.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations, and he concurred with the PEB's findings and recommendation to separate him with severance pay.  The applicant has provided no evidence to refute the rating he received by the PEB.  Accordingly, he is not entitled to correction of his record to change his discharge for disability to a medical retirement.
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)                                         AR20090021005



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ABCMR Record of Proceedings (cont)                                         AR20090021005



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