IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20090021425 


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 his discharge, for physical disability reasons, be changed to a medical retirement.

2.  The applicant states, in effect, that he was discharged with a physical disability with severance pay and he should have been medically retired instead.  He contends that the Army diagnosed him with exercised induced compartment syndrome and left it at that.  He adds that after several years of asking the Department of Veterans Affairs (VA) to do a biopsy, one was finally preformed which indicated he had muscular dystrophy.  He believes if the Army had ordered a biopsy, he would have been found to have muscular dystrophy prior to his separation.  

3.  The applicant provides the following:

* A rebuttal to the Advisory Opinion from the U.S. Army Physical Disability Agency (USAPDA)
* A copy of a letter to the VA
* A copy of his VA decision letter
* A copy of the Medical Evaluation Board (MEB) proceedings
* A copy of the Physical Evaluation Board (PEB) proceedings
* A copy of his medical records
* A copy of a DD Form 214N (Report of Separation from Active Duty), dated 30 June 1977
* A copy of a DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 4 June 1986
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.  Copies of his previous DD Form 214s show he had prior enlisted service in the United States Navy and was discharged on 4 June 1986.  The applicant’s official military personnel records (OMPF) and most recent DD Form 214 are not available.  A copy of the MEB proceedings show that the applicant entered active duty in November 1989 and held military occupational specialty (MOS) 35H (Calibration Specialist).  As of 12 February 1992, he had completed 14 years and 3 months of active military service and his rank and pay grade was listed as specialist/E-4.  

3.  A copy of a Standard Form (SF) 502 (Narrative Summary Clinical Resume) shows he was referred for an MEB due to his inability to perform his military duties in MOS 35H.  His records are absent of any preliminary requests for medical evaluation prepared by his chain of command.

4.  On 12 February 1992, the applicant was evaluated by an MEB for exercise induced compartment syndrome and persistent severe bilateral calf pain.  The evaluation board determined that he was unfit for duty under the provisions of Army Regulation 40-501, chapter 34.  A copy of a DA Form 3349 (Physical Profile) indicates the applicant was given a permanent physical profile rating of 114111 on 19 February 1992.  He was referred to a PEB for further adjudication of the duty limitations.  On 25 February 1992, the applicant concurred with the board's findings and recommendation.

5.  The applicant's case was referred to a PEB.  On 17 April 1992, the PEB found the applicant to be physically unfit and recommended a combined physical disability rating of 10% and that he be separated with severance pay.  The board advised him that because his disability was less than 30 percent and he had less than 20 years of service, Army Regulation 635-40 required his separation from service with severance pay.  The PEB further advised him since he had service-connected medical conditions, he should contact a VA counselor to learn about available benefits such as disability compensation, rehabilitation programs, insurance programs, employment assistance, home loans, and medical care benefits.

6.  The applicant was discharged for disability, with severance pay, on 26 May 1992, under the provisions of Army Regulation 635-40, paragraph 4-24e(3), for disability, with severance pay.

7.  Item 18 (Remarks) of the applicant's DD Form 214 shows he received $29,188.80 in disability severance pay on the date of his discharge. 

8.  In the processing of this case an advisory opinion was obtained from the USAPDA.  The opinions of that agency are as follows:

	a.  The applicant requests that his military records be changed to reflect disability retirement based on an alleged error regarding his medical treatment and diagnosis.  He makes reference to having been subsequently found to have "some type of Muscular Dystrophy."  The available case file does not contain any diagnosis of muscular dystrophy nor any facts indicating that the diagnosis of the MEB was not correct.  There is no evidence in this case file which would indicate that his 1992 MEB diagnosis of compartment syndrome and persistent calf pain was caused by any muscular dystrophy or that any type of unfitting muscular dystrophy existed at the time of the applicant's separation in 1992.  It is noted that the 2002 VA rating decision continued to support and agree with the diagnosis of compartment syndrome with no mention of any muscular dystrophy. 

	b.  The applicant's MEB had exercise induced compartment syndrome and persistent calf pain as the only two listed diagnoses.  The applicant concurred with the findings.

	c.  On 17 April 1992, a formal PEB found the applicant unfit for duty due to his compartment syndrome and history of periostitis.  There is no VA Schedule for Rating Disabilities (VASRD) code for compartment syndrome and the PEB rated the applicant for his periostitis.  Since the applicant had a full range of motion, the PEB rated the applicant in accordance with the VASRD criteria under code 5022 and 5003.  There was x-ray evidence of involvement of two or more major joints or two or more minor joint groups which equaled 10%.  All ratings below 30% receive the same disability severance pay compensation and benefits as prescribed by Title 10 U.S. Code 1203.  The applicant was represented by assigned legal counsel at his formal hearing and concurred with the PEB findings and did not appeal. 

	d.  In 1992, the USAPDA had no written policy or practice regarding the use of specific analogous codes for certain listed conditions not found in the VASRD.  Accordingly, all PEBs were free to use their best judgment in deciding which VASRD code to select in unusual cases.  In the applicant's case, the PEB selected 5003 and 5022 based on the applicant's previously-diagnosed leg pain due to stress fractures.  In 1999, the USAPDA put forth written policy that compartment syndrome cases should be rated analogously to muscle injuries.  A review of the muscle related rating criteria found in the VASRD indicated that a PEB could rate the applicant for bilateral Group XI muscle injuries under code 5311.  Based on the applicant's claim of lowered threshold of fatigue pain of his leg muscles, the PEB could have given a percentage for each leg based on one or more of the cardinal signs and symptoms of muscle disability; 10% each for each leg which would have equaled a total of 20% and still would have resulted in separation with severance pay. 

	e.  The applicant has not provided any evidence that an error occurred in the 1992 MEB and PEB findings.  Therefore, there is no evidence to support the applicant's request to change his discharge to a medical retirement.

9.  On 7 June 2010, the applicant was furnished a copy of the advisory opinion for his information and possible rebuttal.  In his response, he defines compartment syndrome and the three possible causes which are steroid use, traumatic injury, or muscle disease.  He points out that when the Army investigated him for steroid use, they found none.  He contends that if the Army had ordered a biopsy in 1992, the muscular dystrophy would have been found.  He states that very little research had been done on compartment syndrome at the time.  A sports medicine doctor had offered to do the surgery at Fitzsimons Army Hospital but the staff turned him down.  He then had the bilateral leg surgery in September 1990 which treated only the symptoms and not the cause.

10.  The applicant further contends that he does not disagree with the PEB's findings of unfit but their use of x-rays and claims of periostitis are inaccurate because x-rays will not show muscle disease.  He is not contending that the MEB and PEB erred in their findings but that they should have ordered a biopsy to ensure a fair hearing.  He states that it wasn't until several years of asking the VA to have a biopsy done that they found he had a type of muscular dystrophy.  He adds that if he had the funds at the time of his surgery he would have more medical evidence to provide.  Because he had over 14 years of honorable service, he feels he should have been medically retired. 

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

12.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

13.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay. 

14.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  

15.  A common misconception is that a veteran can receive both a military retirement for physical unfitness and a VA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention to change his discharge, for physical disability reasons, to a medical retirement was carefully considered; however, it is not supported by the evidence.  

2.  The PEB found the applicant to be physically unfit and recommended a combined physical disability rating of 10%.  He was advised that because his disability was less than 30 percent and because he had less than 20 years of service, the applicable regulation required his separation from the service with severance pay.  The applicant concurred with the board's findings and recommendation.  A copy of his latest DD Form 214 shows the applicant was discharged on 26 May 1992, under the provisions of Army Regulation 635-40, paragraph 4-24e(3), and received $29,188.80 in disability severance pay on the date of his discharge. 

3.  The applicant now feels he should have received a medical retirement based on the fact he was misdiagnosed with compartment syndrome when in fact he had muscular dystrophy.  However, it should be noted that the MEB and PEB made their decisions on the medical records and the documentations which were presented to them at the time his case was boarded.  It should also be noted that in the VA Decision Letter, dated 17 September 2002, compensation was granted for compartment syndrome.  There was no mention of muscular dystrophy in this particular letter.  The evidence shows that the VA, in its discretion, awarded the applicant a disability rating, which is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

4.  The applicant has submitted neither sufficient evidence nor a convincing argument in support of his request.  Consequently, his request for medical retirement is denied.  

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)                                         AR20090021425





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ABCMR Record of Proceedings (cont)                                         AR20090021425



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