IN THE CASE OF:	  

		BOARD DATE:	    13 January 2011

		DOCKET NUMBER:  AR20100014006 


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 assigned disability rating from the Physical Evaluation Board (PEB) be reassessed, that all of his disabilities be evaluated and that he be assigned a disability rating of 30 or more percent and retired by reason of physical disability. 

2.  The applicant states that he was medically discharged for a back condition in 2006 at a time in which the Army had full knowledge of his depression, eye problems, and post-traumatic stress disorder (PTSD).  However, they only rated him on his back condition and his spine is now affected with sclerosis.  He continues by stating that the Army was obligated to give him a rating on all of his unfitting conditions.  He also states that he lives in Europe and cannot get treatment from a military hospital because he did not receive a 30% disability rating and is not considered a retiree; therefore, he desires to be medically retired so that he can receive a military identification card and treatment in military facilities.

3.  The applicant provides:

* A letter from his wife
* Copies of his medical evaluation board (MEB) and PEB proceedings
* Copies of releases for information
* A copy of his Department of Veterans Affairs (VA) Rating Decision



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 18 February 1997 for a period of 4 years and training as an automated logistics specialist.  He completed his training and continued to serve.

3.  He reenlisted on 16 March 2000 for a period of 3 years and assignment to Europe.  On 3 December 2004, he again reenlisted for a period of 3 years and stabilization for 1 year in Germany.

4.  On 8 March 2006, an MEB convened at the Medical Department Activity in Heidelberg, Germany that diagnosed him as having “DDD of lumbar spine manifested by herniated nucleus pulposus @L5-S1 disc w/contact of surrounding nerve roots requiring microdiscectomy in Jun 2005 complicated by continued lower back pain & left radicular pain.”  The MEB also diagnosed him as having “Neurologic deficits directly related to diagnosis number one involving reduced sensory findings in the left leg, weakness in the left leg, and abnormal deep tendon reflexes of the left leg.”  The MEB found both conditions medically unacceptable and recommended that he be referred to a PEB.

5.  On 28 March 2006, a PEB convened in Washington, D.C. and evaluated his two unfitting conditions.  The PEB determined that in accordance with the Veterans Affairs Schedule for Rating Disabilities (VASRD) in effect at the time, he was entitled to a 10% disability rating for each disability for a combined disability rating of 20%.  The PEB recommended separation with severance pay and the applicant elected to concur with the findings and recommendations of the PEB and waived a formal hearing of his case.  The findings and recommendation were approved on 12 April 2006.

6.  On 11 July 2006, the applicant was honorably discharged in the pay grade of E-4 by reason of disability with severance pay.  He had served 9 years, 4 months, and 24 days of total active service and was paid $36,331.20 in severance pay benefits.

7.  The VA Rating Decision provided by the applicant with his application shows that he was granted an 80% disability rating by the VA effective 21 May 2009.

8.  In the processing of this case a staff advisory opinion was obtained from the Army Physical Disability Agency (PDA) which opined that at the time of his PEB his other conditions were not found unfitting and that only his back and leg pain significantly hindered his ability to perform his assigned duties.  Accordingly, he was evaluated in accordance with the VASRD in effect at the time and was properly rated as being 20% disabled.  The officials also noted that when the applicant was evaluated it was based on passive Range of Motion (ROM) findings.  However under current standards he would receive a 30% disability rating based on the fact that the PEB now rates based on active ROM findings.  The advisory opinion was provided to the applicant for comment and to date, no response has been received by the staff of the Board. 

9.  On 14 October 2008, the Under Secretary of Defense published a memorandum, Subject: Policy Memorandum on Implementing Disability Related Provisions of the National Defense Authorization Act (NDAA) of 2008.  This memorandum provided supplemental and clarifying guidance on implementing those disability related provisions of the 2008 NDAA.  Enclosure 7 provided the policy for application of the VASRD.  It stated the Military Departments may not deviate from the schedule.

10.  Paragraph 4.3 of the VASRD provides guidance on the resolution of reasonable doubt in assigning a disability rating and states it is the defined and consistently applied policy of the VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant’s disabilities were properly rated in accordance with the VASRD and his separation with severance pay was in compliance with laws and regulations in effect at the time.  

2.  However, the information received from the Physical Disability Agency that had the current procedures being used by the PEB been used at the time that the applicant was evaluated, he would have received a 30% disability rating (20% for back problems and 10% for neurologic deficits.

3.  As a result, it appears that the application of the VASRD would have resulted in the PEB assigning a combined disability rating of 30% instead of the 20% disability rating he received.  Therefore, as a matter of equity, it would be appropriate to correct the record to show the PEB assigned a combined disability rating of 30% and recommended the applicant’s retirement by reason of physical disability.

4.  Further, based on the change to the PEB combined disability rating and recommendation for permanent disability retirement, the record should be corrected by voiding the applicant’s 11 July 2006 discharge with severance pay and instead showing he was retired by reason of permanent disability on that same date and placed on the Retired List in the grade of SPC/E-4 the following day.  He should be provided all back retired pay and allowances due as a result, minus the disability severance pay he received.

5.  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:

1. 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 as follows:

     a.  amend the PEB proceedings to show the applicant was assigned a 
20 percent disability rating for his low back pain and a 10 percent disability rating for neurologic deficits, and a combined disability rating of 30 percent, and that the PEB recommended his retirement, by reason of permanent disability;

     b.   void his 11 July 2006 disability discharge with severance pay and instead show he was retired by reason of permanent disability on that same date, and placed on the Retired List in the grade of SPC/E-4 the following day with all due transportation and travel entitlements which this correction would entitle him to; and 

     c.   provide him all back retired pay and allowances due as a result of the above changes minus the disability severance pay he received;

2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Global War on Terrorism are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   _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)                                         AR20100014006





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ABCMR Record of Proceedings (cont)                                         AR20100014006



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