BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20090021726 


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 that his discharge by reason of physical disability on 17 March 1992 be voided and that he instead be retired by reason of physical disability with a 30 percent (%) disability rating.

2.  The applicant states, in effect, that he was initially placed on the Temporary Disability Retired List (TDRL) with a 30% disability rating based on the rating of the Physical Evaluation Board (PEB).  However, on a subsequent re-evaluation the PEB recommended discharge with a 10% disability rating and severance pay.  He also states that the Department of Veterans Affairs (VA) has increased his disability to a 40% disability rating.

3.  The applicant provides:

* a copy of his DD Form 214
* a copy of his DA Form 2-1 (Personnel Qualification Record - Part II)
* a copy of pages from the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD)
* copies of his DA Forms 199 (Physical Evaluation Board) and separation documents

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 20 May 1977 and he remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 1 February 1985.

3.  On 23 February 1990, a PEB convened to consider the applicant’s disability of deep venous thrombosis (VASRD code 7121).  The PEB found that the applicant was unfit and recommended placement on the TDRL with a 30% disability rating with re-examination in September 1991.  The applicant concurred with the findings and recommendation of the PEB.

4.  On 30 March 1990, he was placed on the TDRL in the pay grade of E-6 due to temporary disability.

5.  On 3 October 1991, the applicant underwent a re-evaluation at Wright Patterson Air Force Base, OH and the examining vascular surgeon determined that he was still unfit for service and recommended retention on the TDRL.

6.  On 11 December 1991, a PEB convened at Fort Sam Houston, TX and determined that the applicant continued to be unfit due to inability to walk more than 1/4 mile; however, he is in no distress, he is employed, and he has no increased pigmentation or ulceration of his right lower extremity.  The PEB recommended separation with severance pay and a 10% disability rating.  The applicant elected to appear before a formal hearing with counsel.

7.  A narrative addendum, dated 19 February 1992, states there was an area of hyperpigmentation in the mid dorsal aspect of the applicant’s right foot.

8.  The applicant appeared before a formal PEB with counsel and after reviewing all available medical records and testimony by the applicant, the PEB opined that there was no increased pigmentation or ulceration of his right lower extremity and 


again determined he should be separated with a 10% disability rating with severance pay.  The PEB was approved by the appropriate authority on 10 March 1992.

9.  On 17 March 1992, the applicant was removed from the TDRL with entitlement to a 10% disability rating percentage with severance pay.

10.  In the processing of this case, on 15 June 2010, a staff advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The advisory official opined that based on the applicant’s TDRL re-evaluation his reported symptoms most closely fit the criteria for a 30% disability rating under the VASRD 7121 rating criteria in effect at the time.  The advisory officials recommended correction of his records to show he was retired by reason of physical disability with a 30% disability rating, effective 17 March 1992.

11.  The advisory opinion was provided to the applicant to allow him the opportunity to submit comments or a rebuttal.  He concurred with the advisory opinion as written.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been retired by reason of permanent disability with a 30% disability rating instead of being separated with a 10% disability rating with severance pay has been noted and appears to have merit.

2.  During his TDRL re-evaluation it was noted in a physical examination that the applicant complained of swelling in his right leg, chronic pain, and inability to walk more than 1/4 mile without increased pain and swelling.  Additionally, it was noted in the narrative summary addendum, dated 19 February 1992, that there was an area of hyperpigmentation in the mid dorsal aspect of his right foot; however, the formal PEB indicated that there was no increased pigmentation of his right lower extremity.

3.  According to officials at the USAPDA, the VASRD 7121 rating criteria in effect at the time of the applicant’s TDRL re-evaluation indicate that his reported symptoms most closely fit the criteria for a 30% disability rating.

4.  Accordingly, it would be in the interest of justice to grant the applicant’s request by correcting his records to show that he was retired by reason of permanent disability with a 30% disability rating, effective 17 March 1992, and voiding his separation by reason of permanent disability with a 10% disability rating with severance pay.

5.  As a result of this correction, the applicant is entitled to all back pay and allowances that flow from this change.

6.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

BOARD VOTE:

___x____  ____x____  ___x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  voiding his separation by reason of permanent disability with a 10% disability rating with severance pay;

	b.  showing that he was retired by reason of permanent disability with a 30% disability rating, effective 17 March 1992; and



   c.  paying him all back pay and allowances that flow from this correction, less any severance pay he may have already received.



      __________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)                                         AR20090021726



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ABCMR Record of Proceedings (cont)                                         AR20090021726



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