IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100000494 


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, physical disability retirement.

2.  The applicant states he was medically discharged from the Army and granted a 20 percent (%) disability rating percentage due to his knees.  The medical board did not evaluate his right wrist injury, ulnar nerve injury, neck injury, or his chronic low back pain.  He contends that at the time he was instructed that he was being boarded only for his knees although he had a Permanent (P) 3 profile for his right arm injuries, as well as his knees.  He claims that he clearly stated on the medical evaluation all of his injuries and he reviewed them with Dr. M-----, the physician in charge of his case.

3.  He believes that had he been properly evaluated by the medical board, he would have received a rating greater than 20% and he would have been medically retired.  He contends that the Temporary Disability Retired List (TDRL) program was not properly explained to him.  He had nearly 18 years of service and certainly would have opted to be placed on the TDRL so that he could finish his time for a full 20-year retirement, which he deserved.  The Physical Evaluation Board Liaison Officer (PEBLO) explained the TDRL program as one in which the Soldier continues to go to work.  The Soldier would be in uniform and continue to do the same duties as he/she always has.  The applicant states that based on his personality he knew he would continue to injure himself because he is more of a doer and has a difficult time not helping others when he sees a need.


4.  The applicant provides the following:

* a copy of his Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) proceedings with supporting documents
* a copy of his Medical Evaluation Board (MEB) proceedings with supporting documents
* a copy of his Physical Evaluation Board (PEB) proceedings with supporting documents
* an extract from his medical records
* a copy of email transmissions between the applicant and the U.S. Army Human Resources Command (USAHRC) Inspector General Office 
* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 April 2002
* a copy of his Enlisted Record Brief (ERB)

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 records show he initially enlisted in the U.S. Army Reserve (USAR) for a period of 6 years on 16 June 1983.  A copy of his DA Form 2-1 (Personnel Qualification Record) shows he enlisted in the Regular Army on
2 April 1985.  He was trained in and awarded MOS 54B (Chemical Operations Specialist).

3.  Headquarters, Joint Readiness Training Center, Fort Polk, LA, memorandum, subject:  Summary of MMRB Proceedings, dated 14 August 2001, referred the applicant to the Army Physical Disability System (APDS).  A second memorandum, subject:  Assignment to Medical Holding Company, dated
14 August 2001, reassigned the applicant to the Fort Polk Medical Holding Company pending disposition of a medical board for discharge.  A copy of a DA 


Form 3349 (Physical Profile), dated 15 October 2001, shows his medical condition as "chronic degenerative knee arthopathy, chronic right wrist degeneration pain" with a permanent profile rating of 3 for his upper and lower extremities.  The medical documentation revealed that the applicant described the ulnar deviation in his right wrist as bringing him pain.  He also listed problems with his cervical neck region, right ankle, left wrist, left knee and lower back problems.  While these medical issues were noted, his P3 profile was specifically prescribed to him for his knees and his right wrist. 

4.  On 12 December 2001, the applicant was evaluated by an MEB for chronic degenerative knee arthropathy and degenerative arthritis in his right wrist.  He was referred to a PEB for further adjudication of the duty limitations.  The applicant concurred with the board's findings and recommendation.  He also certified that the MEB accurately covered all his medical conditions and that all his health records pertaining to his case were turned over to the proper authorities.  He certified he had been counseled in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), appendix C-6 (Counseling - MEB).

5.  The applicant's case was referred to the PEB under the cover of a DA Form 3947 (MEB Proceedings).  On 9 January 2002, the board convened; however, they discontinued the PEB proceedings pending the completion of two line of duty (LOD) investigations which were not accomplished at the time of the applicant's injuries.  Upon receipt of the LODs, the board reconvened, and on 1 February 2002, the applicant was evaluated for chronic degenerative arthropathy of the right knee and degenerative arthritis of the right wrist.

6.  The PEB found the applicant to be physically unfit and recommended a combined physical disability rating of 20% and that he be separated with severance pay.  The board advised him that because his disability was less than 30%, 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 Department of Veterans Affairs (VA) counselor to learn about available benefits, such as disability compensation, rehabilitation programs, insurance programs, employment assistance, home loans, and medical care benefits.  The applicant concurred with the findings and recommendation and waived his right to a formal hearing. 

7.  On 4 April 2002, the applicant was discharged in the rank/grade of sergeant first class (SFC)/E-7, under the provisions of Army Regulation 635-40, paragraph 4-24b(3), by reason of disability, severance pay.  He was credited with 17 years, 6 months, and 17 days of total active service.  He received $71,402.40 in disability severance pay.
8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  Chapter 3 provides guidance on presumptions of fitness.  It states that the mere presence of impairment did not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

9.  PEBs 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.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for physical disability 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 20%.  He was advised that because his disability was less than 30 percent, the applicable regulation required his separation from the service with severance pay.  On page 2, item 30 (Continuation) of his MEB proceedings, the applicant certified the MEB accurately covered all of his medical conditions.  The conditions which were listed in the proceedings were the chronic degenerative knee arthropathy and the degenerative arthritis of the right wrist.  If the applicant did not agree with the findings of the MEB, he had the choice to appeal; however, he chose not to.  The applicant concurred with the board's findings and recommendation and waived his right to a formal hearing.  



3.  The applicant now feels he should have received a physical disability retirement based on the fact that the board did not evaluate his right wrist injury, his right ulnar nerve injury, neck injury, or his chronic low back pain.  The board proceedings show that his right wrist injury and the ulnar nerve pain were directly related.  He was evaluated for and received compensation for that injury.  Therefore, the applicant's contention that he was not evaluated for his right wrist injury and right ulnar nerve injury is not supported by the evidence.  

4.  Records show the MEB and PEB made their decisions based on the medical records and the evidence which were available at the time his case was presented.  Those documents included a DA Form 3349, which shows he was given a profile only for a knee and wrist condition.  There is no evidence that he was ever given a profile for a neck or back condition or that any neck or back condition rendered him unfit to perform his duties.  From the evidence, the applicant was properly evaluated for those medical conditions which were listed in his permanent profile.  The applicant has submitted neither sufficient evidence nor a convincing argument in support of his request.  Consequently, his request for physical disability retirement should be 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)                                         AR20100000494



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100000494



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1