IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100018886 


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 reconsideration of his request for correction of his military records to show that he was retired due to physical disability.

2.  The applicant states, in effect, he was given an incorrect disability rating that resulted in his removal from the temporary disability retired list (TDRL).  He adds that his additional evidence supports reconsideration of the original decision rendered by the Army Board for Correction of Military Records (ABCMR) in his case.

3.  The applicant provides copies of the following documents:

   a.  DA Form 3349 (Physical Profile), dated 1 October 1996;

   b.  Headquarters, III Corps and Fort Hood, TX, letter, dated 13 October 1996;

   c.  Walter Reed Army Medical Center (WRAMC), TDRL Addendum, dated
4 March 2000;

   d.  Bruce M. S--- and Stephen F. G---, Doctors of Osteopathy, letter, dated
13 March 2000;

   e.  Letters from the applicant to:

       (1)  Representative Joseph R. P---, U.S. House of Representatives, Washington, DC, dated 21 July 2009; and
       (2)  Department of Veterans Affairs (VA), Washington, DC, dated 4 August 2009 and one undated.

   f.  Commonwealth of Pennsylvania, Department of Military and Veterans Affairs, Bureau of Veterans Services, Fort Indiantown Gap, Annville, PA, letter, dated 9 July 2008;

   g.  State of New Jersey, Department of Military and Veterans Affairs, Trenton, NJ, letter, dated 30 June 2010;

   h.  U.S. Army Human Resources Command (USA HRC), Officer Professional Development Directorate, Fort Knox, KY, memorandum, dated 26 August 2010; and 

   i.  A letter from Lieutenant General (LTG) David P. V----, U.S. Army (Retired), dated 8 September 2010.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request for correction of his military records to show that:

	a.  The applicant's erroneous separation action without a proper rating of his disability be removed from his Official Military Personnel File (OMPF);

	b.  All references to the erroneous separation action, including all administrative documents created by or relating to his final TDRL physical disability processing, including the erroneous separation orders, dated 16 November 2000, be removed from his OMPF;

	c.  All documents resulting from the erroneous separation action be removed from his OMPF, including, but not limited to, all associated memoranda and correspondence connected to his removal from the TDRL;

	d.  The applicant was returned to TDRL status, retroactive to 16 November 2000, for proper evaluation of his medical condition (including all of the medical conditions rated by the VA) by a new, impartial Physical Evaluation Board (PEB);

	e.  As an alternative to a new PEB, the Army accepts the applicant's 100% VA disability rating and enters an appropriate decisional document into his OMPF;

	f.  The applicant's records be corrected to show he was serving continuously on the TDRL from 16 November 2000 to the date the Army properly completes his evaluation and legally separates him from active duty;

   g.  The applicant be credited for pay and longevity for the period 16 November 2000 to the date the Army completes its evaluation and legally separates him from the TDRL;

	h.  The applicant be immediately paid all back pay and allowances due him for the period from 16 November 2000 to the date the Army completes its evaluation and legally removes him from the TDRL;

	i.  The applicant be reimbursed for all medical expenses, including transportation for medical treatment and medical insurance premiums, paid during the period 16 November 2000 to the date the Army completes its evaluation of the applicant and legally removes him from the TDRL;

	j.  The applicant be paid TDRL retired pay during the period from when he is returned to the TDRL for disability processing and subsequently medically retired;

	k.  If medically retired, the applicant be given an opportunity to participate in the Survivor Benefit Plan;

	l.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) and all other separation documents be corrected to indicate he was separated or retired from active duty, by reason of physical disability, on the date the Army completes its evaluation of the applicant and legally removes him from the TDRL; and

   m.  That the applicant's longevity and retired pay be recalculated accordingly.

2.  Counsel states the applicant suffered a brain injury during active duty.  However, Army medical personnel failed to identify and treat the condition causing him to have seizures for over a year.  Counsel also states:

   a.  The applicant was placed on the TDRL on 16 April 1997.  He remained on the TDRL until his normal, periodic medical examination in December 1998;

   b.  After physical disability evaluation, on 16 November 2000, the applicant was separated from active duty because of permanent physical disability with a rating of zero percent (0%);

   c.  Medical records clearly show the applicant was suffering from physical and mental disabilities, which made him unfit and unable to perform his military duties.  In addition, argument and evidence provided in the applicant's original application to the ABCMR show the misconduct and errors that resulted in the Army's denial of a just disability rating for the applicant's conditions and his permanent disability retirement from the Army;

   d.  The VA has rated the applicant "unable to work" with a "100% Total and Permanent Disability."  When the applicant returned to civilian life, he was unable to perform the requirements of his civilian employment.  In addition, at the time of his original application, the applicant was (and he continues to be) unemployed; and

   e.  Counsel, on behalf of the applicant, requests reconsideration of the ABCMR's decision and that the applicant be issued a proper disability rating and permanently retired from the U.S. Army.

3.  Counsel provides three letters (Exhibits R1 - R3) that are identical to the letters the applicant submitted in support of this request for reconsideration.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090002079, on 8 October 2009.

2.  The applicant makes a new argument that warrants consideration by the ABCMR.

3.  The applicant was commissioned as a second lieutenant in the Field Artillery with concurrent call to active duty in the Regular Army on 1 June 1991.

4.  In 1993 and 1994, the applicant experienced two generalized tonic-clonic seizures.  On 16 August 1994, he underwent a left frontal craniotomy [a surgical operation in which an opening is made in the skull] with surgical resection to remove a mass.

5.  The applicant was promoted to captain/pay grade O-3 effective 1 June 1995.

6.  On 5 August 1996, the applicant underwent a neuropsychological evaluation. It showed the assessment data from June 1994 and August 1996 was essentially identical, and was not consistent with the presence of an organic brain disorder.  The recommendation was that he should have a follow-up examination in
2 years, or sooner if additional neuropsychological symptoms developed.

7.  On 8 August 1996, the applicant underwent a physical examination which revealed that his head had a well-healed scar secondary to his arteriovenous malformation [defect of the circulatory system that is generally believed to arise during embryonic or fetal development or after birth] resection.  The applicant complained about headaches and several episodes of fluid leaking from his left temple, which was not evident during the examination:

   a.  The applicant underwent extensive neuropsychological testing and it was felt that his symptoms interfered with many aspects of his day-to-day functioning; 

       (1)  The symptoms impeded his decision-making; however, his neurological functioning revealed he was operating at normal levels at that time; and 

       (2)  There were deficits to include attention, concentration, memory, psychomotor, language, and perceptual.  The deficits in terms of attention, concentration, and memory were mild.  The conclusion was that these findings were consistent with the presence of a slight brain disorder.  Reimaging of his brain revealed no evidence of blood collections, cerebrospinal fluid leak, or any other problem at that time.

   b.  The applicant was seen by orthopedic services and urology, and he was also administered an allergy test resulting in the identification of 28 specific antigens to which he was allergic; and

   c.  The applicant was found not medically qualified for retention.

8.  On 13 October 1996, Colonel (COL) Tony R. B---, the applicant's supervisor wrote a letter to the Commander, WRAMC, wherein he stated the applicant's medical condition had continued to take a toll.  He noted the applicant was no longer capable of advancing in grade due to the limitations imposed by his medical problems.  The supervisor recommended that the applicant be separated from military service at the earliest opportunity.

9.  On 7 November 1996, a medical evaluation board (MEBD) convened to assess the applicant's medical condition.  The MEBD referred the applicant to a PEB for a determination of fitness for duty based on the following diagnoses:

	a.  Status post resection of the left frontal arteriovenous malfunction with neuropsychological deficits, organic brain disorder;

	b.  Severe headaches secondary to [arteriovenous malfunction] resection;
	c.  Urologic testicular pain status post-right orchiectomy [surgical removal of the right testes] secondary to trauma and right inguinal discomfort most likely secondary to scar formation (no surgery needed);

	d.  anterior cruciate ligament tear on the left knee secondary to trauma (no evidence of laxity, no need for emergency surgery at that time);

	e.  Allergic rhinitis, controlled with medication;

	f.  Allergic to 28 specific allergens;

	g.  Seizure-free at that time;

	h.  Sustained episodes of dizziness;

	i.  Pseudomeningocele [bulging membrane] at burr hole site where episodes of cerebrospinal fluid may leak secondary to resection (surgical repair discussed, most likely will heal with time); and

	j.  Persistent eczema.

10.  On 12 December 1996, a PEB convened to consider the applicant's medical condition:

   a.  The PEB found the applicant unfit due to:

       (1)  Status post-resection of left frontal arteriovenous malformation with neuropsychological defects, slight organic brain syndrome, rated 10% disabling;

       (2)  Severe headaches secondary to arteriovenous malformation resection, rated 10% disabling; and

       (3)  Sustained episodes of dizziness, rated 10% disabling; and

       (4)  The remaining seven diagnoses submitted by the MEBD were not found unfitting and were not rated by the PEB.

   b.  The PEB rated his combined disabilities 30% disabling and recommended placement on the TDRL.  The applicant did not concur and demanded to appear before a formal hearing with counsel.



11.  An addendum to the MEBD, dated 17 January 1997, shows the applicant experiences severe, unmitigated vascular type recurrent headaches secondary to resection of a left frontal arteriovenous malformation.  Specifics of the vascular malformation within his brain that was resected was found on the initial MEBD.

12.  On 4 February 1997, an informal PEB was convened to reconsider the applicant's medical condition.

   a.  The PEB found the applicant unfit due to:

       (1)  Severe vascular headaches secondary to resection of left frontal arteriovenous malformation, rated 30% disabling;

       (2)  Status post-resection of left frontal arteriovenous malformation with neuropsychological defects, slight organic brain syndrome, rated 10% disabling; 

       (3)  Sustained episodes of dizziness, rated at 10% disabling; and

       (4)  The remaining seven diagnoses submitted by the MEBD were not found unfitting and were not rated by the PEB.

   b.  The PEB rated his combined disabilities 40% disabling and recommended placement on the TDRL with reexamination in July 1998.  The applicant concurred and waived a formal hearing.

13.  Headquarters, Fort Myer Military Community, Arlington, VA, Orders
051-0001, dated 20 February 1997, separated the applicant from active duty and placed him on the TDRL.  The orders show he had completed 6 years, 11 months, and 7 days for disability retirement and 9 years, 2 months, and 6 days for basic pay.

14.  A TDRL Evaluation Summary, dated 15 December 1998, shows it had been nearly 5 years since the resection of the applicant's arteriovenus malformation. By all measurable, objective neurological standards, the applicant was doing extremely well.  He was gainfully employed.  The applicant's condition was stable at a very functional baseline and he was likely to stay that way:

   a.  The applicant was diagnosed with intracranial arteriovenus malformation status post-resection via frontal lobectomy and craniotomy (medically unacceptable), severe headaches with migraine component (medically unacceptable), and eczema (medically acceptable);

   b.  The applicant's complaints of severe headaches and other subjective dysfunction were not substantiated on detailed neuropsychological, radiographic, and clinical testing.  Nonetheless, they significantly affected his performance and previous attempts at functioning in an active duty environment were unsuccessful; and
   
   c.  The applicant's condition was medically unacceptable for active duty service and was unlikely to ever be so.  The recommendation was that the applicant be placed on permanent disability retirement.

15.  On 11 February 1999, the applicant disagreed with the TDRL summary and recommendations.  He submitted a rebuttal to the TDRL summary that included detailed comments related to the Army's medical practices in his case and his physical examination.  The applicant listed each of the separate diagnoses made by the doctors who examined him during the TDRL evaluation.

16.  A TDRL Evaluation Summary Addendum, dated 9 August 1999, shows the applicant underwent further evaluation, the document summarized the evaluation, and specifically responded to the applicant's rebuttal of the TDRL evaluation.  The physician recommended no change in the applicant's dictated diagnoses and recommended that the applicant be transitioned to a permanent disability retirement status.

17.  On 26 August 1999, the applicant provided a 2-page rebuttal stating he disagreed with the TDRL summary and recommendations.  The rebuttal was reportedly prepared with professional assistance and the aid of his family.

18.  On 13 October 1999, the PEB returned the applicant's case to the Commander, WRAMC, because the current information was insufficient for adjudication.  The PEB requested that the WRAMC acknowledge the applicant's rebuttal to the TDRL Evaluation Summary Addendum and address the rebuttal, if appropriate.

19.  On 12 January 2000, the PEB convened an informal hearing to reconsider the applicant's medical condition.  He was diagnosed with headaches post-resection left frontal arteriovenus malformation rated 0% disabling based on the 15 December 1998 TDRL Evaluation Summary and 9 August 1999 TDRL Evaluation Summary Addendum.  The PEB considered the applicant's condition to have improved so as to be rateable at less than 30%.  He was found unfit for retention and the PEB recommended separation with severance pay, if otherwise qualified.

20.  On 26 January 2000, the applicant nonconcurred with the PEB determination and demanded a formal hearing.

21.  A TDRL Evaluation Summary Addendum, dated 4 March 2000, recommended that the applicant be referred to a PEB for migraine headaches, cognitive disorder, and vertigo that did not meet medical retention standards.  It shows his medical conditions were incapacitating and may prevent the applicant from working or from working effectively.  The physician stated that it was unlikely that the applicant would become free of these disorders in the future because of the duration of his complaints and the nature of the precipitating event.

22.  A WRAMC memorandum, dated 13 April 2000, shows the Acting Chief, Department of Psychiatry, had reviewed the neuropsychological evaluation, dated 13 October 1998, as requested by the PEB.  The physician described the diagnosis of cognitive disorder, not otherwise specified, as a mild impairment in learning as well as some equivocal impairment in attention and in psychomotor functioning.  Some increase in impairment was noted in comparison to the preoperative neuropsychological assessment.  The report also clarified that there appeared to be little to no negative impact on the applicant's functioning due to this condition.  The applicant was functioning adequately in his position as a financial advisor in the civilian community in October 1998.  The applicant's condition was judged to be within medical retention standards.  He noted that the governing regulation required that an organic mental condition be "sufficient to interfere definitively with the performance of duty or social adjustment" in order to be considered outside medical retention standards.

23.  A Report of Neuropsychological Evaluation, dated 1 May 2000, shows the results of the evaluation indicated the applicant was functioning in the above-average range of overall intellect:

   a.  He did not exhibit significant memory problems.  His short and long delay recall memory were intact, indicative of no significant retrieval problems.  His motor speed was in the average range for both hands.  His attention and concentration were in the average and above-average range and his functioning in each of the tested domains showed no significant problem areas;

   b.  Based on the assessment, there was no reason to declare the applicant incompetent for pay and records.  He showed substantial potential for continued civilian employment;

   c.  The applicant reported he compensated for his self-identified memory loss by writing everything down.  However, based on the assessment, his degree of impairment for civilian social and industrial adaptability is in "full remission"; and 

   d.  The evaluation did not focus on the applicant's migraine headaches.  The doctors recommended that the applicant be further assessed regarding his migraine headaches.

24.  On 31 July 2000, the PEB convened a formal hearing to reconsider the applicant's medical condition.  He was diagnosed with headaches post-resection left frontal arteriovenus malformation rated 0% disabling based on the 15 December 1998 TDRL Evaluation Summary and the 9 August 1999 TDRL Evaluation Summary Addendum.  He was found unfit for retention.

25.  On 14 September 2000, the PEB made an administrative correction to the applicant's previous PEB by adding the following:

	a.  The results of neuropsychological testing indicated the neuropsychological deficits for which the applicant was placed on the TDRL were no longer present.  The tests reflected that the applicant currently had above-average function and his condition met medical retention standards at that time; and

	b.  There was insufficient evidence to substantiate the sustained episodes of dizziness which were present when placed on the TDRL were still an unfitting condition.

26.  On 29 September 2000, the applicant, through his counsel, submitted his rebuttal to the 31 July 2000 PEB decision, as amended on 14 September 2000.

27.  On 2 November 2000, the PEB notified the applicant that his rebuttal letters had been received.  In that the rebuttals did not contain any new substantive medical information that was not previously considered, the formal PEB's decision was affirmed.  The applicant was determined to be unfit with a disability rating of 0%.

28.  On 15 November 2000, the U.S. Army Physical Disability Agency (USAPDA) noted the applicant's disagreement with the findings of the PEB.  The USAPDA reviewed the applicant's entire case file and concluded that his case had been properly adjudicated by the PEB.  The applicant was informed that he may apply to the VA for a disability rating and medical care.

29.  USAPDA Orders D222-8, dated 16 November 2000, removed the applicant from the TDRL and discharged him from the military service.  The orders also informed the applicant that he was entitled to receive severance pay if he had over 6 months of service.

30.  In May 2008, the VA granted the applicant a total overall or combined disability rating of 100% for service-connected physical disabilities and ratings, as follows:

	a.  scar, residual of frontal craniotomy surgical resection of arteriovenus malformation (50%);

	b.  maxillary and frontal sinusitis with cephalgia, residual of frontal craniotomy/surgical resection of arteriovenus malformation (30%);

	c.  post-craniotomy headache disorder, migraine, vascular, and sinus (30%);

	d.  cognitive deficit/depressive disorder, residual of frontal craniotomy/surgical resection of arteriovenus malformation (30%);

	e.  degenerative joint disease/disc herniated L5-S1 (20%);

	f.  loss of field of vision, residual of frontal craniotomy/surgical resection of arteriovenus malformation (20%);

	g.  seizures, residuals of frontal craniotomy/surgical resection of arteriovenus malformation (20%);

	h.  tinnitus (10%);

	i.  left knee instability, residual of anterior cruciate ligament tear (10%);

	j.  dizziness, residual of frontal craniotomy/surgical resection of arteriovenus malformation (10%);

	k.  scar, adherent and tender, over right inguinal area, residual of right orchiectomy (10%);

	l.  scar, tender, residual of frontal craniotomy/surgical resection of arteriovenus malformation (10%);

	m.  loss of skull and pseudomeningocele, residual of frontal craniotomy/
surgical resection of arteriovenus malformation (10%);

	n.  right orchiectomy (0%);
	o.  eczema (0%);

	p.  herpes simplex type 1 (0%); and

	q.  left knee loss of extension, residual of anterior cruciate ligament tear (0%).

31.  In support of the request for reconsideration, applicant and his counsel provide the following documents:

   a.  A Physical Profile, dated 1 October 1996; Headquarters, III Corps and Fort Hood, TX, letter, dated 13 October 1996; WRAMC, TDRL Addendum, dated
4 March 2000; and letter from Doctor Bruce M. S---, dated 13 March 2000.  These documents were previously considered as part of the applicant's PEB processing and in the initial consideration of the applicant's case by the ABCMR.

   b.  A letter from the applicant to the Honorable Joseph R. P--- that seeks the congressman's intervention and assistance in the applicant's rebuttal to the ABCMR's original decision.  The applicant provides a summary of his physical disability processing by the Army, a detailed list of the 100% total and permanent service-connected disability ratings rendered by the VA in 2008, and the exact relief he requests from the Army as detailed by his counsel in this request for reconsideration.

   c.  Two letters from the applicant to the Secretary of the VA, the Honorable Eric K. S---, which seeks the secretary's intervention and assistance in the applicant's rebuttal to the ABCMR's original decision.  The applicant provides a summary of his physical disability processing by the Army, a detailed list and summary of the 100% total and permanent service-connected disability ratings rendered by the VA in 2008, and the exact relief he requests from the Army as detailed by his counsel in this request for reconsideration.

   d.  A letter from the Director, Bureau of Veterans Services, Department of the Military and Veterans Affairs, Annville, PA, that shows the applicant was granted a veteran's pension at the rate of $150.00 a month beginning July 2008.

   e.  A letter from Mr. Stephen G. A---, Deputy Commissioner for Veterans Affairs, Trenton, NJ, that shows he has known the applicant since July 1996 when they were assigned to the Combat Arms Division, U.S. Army Personnel Command.  The applicant was Mr. A---'s executive assistant until he was separated from the Army because of his physical disability.

       (1)  He comments on the applicant's exceptional performance.  He states that during the nearly 2 years the applicant worked for him, the applicant's severe prostrating migraine headaches and dizziness caused him to miss work on a regular basis.  He adds that he does not believe the applicant could have performed as well as he did had it not been for the medications he took throughout the day.
   
       (2)  He now sees the applicant regularly and states he is a dedicated, hardworking professional whose potential has been limited by his medical condition.  He states the applicant's prostrating migraine headaches and dizziness conditions remained present without improvement between 1998 and 2000.  He recommends the applicant be given full military retirement with the appropriate disability rating.

   f.  A letter from COL Jeffrey C. L---, Deputy Director, Officer Professional Management Directorate, USA HRC, that shows he has known the applicant since 1994 when they were assigned together in the Combat Arms Division,
U.S. Army Personnel Command.

       (1)  He comments on the applicant's special leadership traits.  He states that the applicant began experiencing severe migraine headaches, seizures, and dizziness that affected his daily life.  The applicant underwent successful surgery; however, he continued to experience side-effects which included prostrating migraines, seizures, and dizziness that made it impossible for the applicant to continue his duties as an active duty combat arms Army officer and cut short his promising career.

       (2)  He has remained friends with the applicant since he separated from the Army and notes the applicant has raised a wonderful family while continuing to struggle with his disabilities in the private sector.  He recommends the applicant be given full military retirement and compensated appropriately for his medical condition.

   g.  A letter from LTG David P. V---, U.S. Army (Retired), that shows he was the Chief, Field Artillery Branch, USA HRC, during 1994 - 1996.  He notes the applicant was assigned to the branch at the time working special projects for COL Tony J. B----, Chief, Combat Arms Division.

       (1)  He comments on the applicant's strong character, intellect, possession of Army values, and his ambition.  He states that it was evident from his initial assignment to the team that the applicant was experiencing some medical issues that progressively worsened to the point that he was physically unable to perform duties associated with being a combat arms Army officer.  He recalls the applicant's continued need for prescription pain medication to combat his battles with prostrating migraine headaches and dizziness.
       (2)  He states the applicant was unable to participate in any physical training activities despite his desire to do so.  He notes that the applicant's medical situation did not allow him to meet Army standards for physical readiness and severely impacted his daily performance.
   
       (3)  He states the staff of the Field Artillery Branch embraced the applicant during this period, and hoped that his visits to WRAMC and medical treatments would resolve his debilitating medical condition and allow him to resume his career as an Army officer.
   
       (4)  He states he has maintained occasional contact with the applicant since 1996, his medical battle has continued, and his promising Army career ended prematurely.  He adds the applicant should have been medically retired with full benefits and compensation due to the severe nature of his medical impairments.

32.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30%.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30%.

33.  Title 38, U.S. Code, sections 1110 and 1131, permits 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.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge in order to compensate the individual for loss of civilian employability.


DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that the applicant's request for correction of his military records to show he was retired due to permanent disability, with appropriate disability ratings, should be reconsidered based on the additional evidence he provides.

2.  The applicant's and counsel's requests were carefully considered.

   a.  The physical profile, dated 1 October 1996; Headquarters, III Corps and Fort Hood, TX, memorandum, dated 13 October 1996; WRAMC, TDRL Addendum, dated 4 March 2000; and letter from Doctor Bruce M. S---, dated
13 March 2000, were previously considered as part of the applicant's PEB processing and in the initial consideration of the applicant's case by the ABCMR.  Thus, they offer no new evidence.

   b.  The letters to Congressman Joseph R. P--- and the Secretary of the VA seeking their intervention and assistance in the applicant's rebuttal to the ABCMR's original decision offer no new evidence.  It is noted that neither of these officials endorsed or provided any input to the ABCMR for reconsideration of the applicant's case.

   c.  The letter showing the applicant was granted a veteran's pension by the Commonwealth of Pennsylvania is noted, but offers no relevant evidence as to the applicant's medical condition at the time of separation from the Army.

   d.  The three letters from former Army officers who served with the applicant 
during the mid-1990s provide information related to the impact the applicant's medical condition had on his duty performance.  It is noted that the applicant's supervisor at the time, and who is identified by name in one of the letters
(i.e., COL Tony R. B---), provided input that was considered by the applicant's MEBD and initial PEB.

       (1)  The three letters, in effect, affirm the assessment and recommendation of COL B--- that he provided to the MEBD/PEB regarding the applicant's duty performance and continued service.

       (2)  More importantly, the three letters describe the applicant's condition during the timeframe in which he was serving on active duty, which was more than three years before the PEB reconsidered the applicant's medical condition after he had been placed on the TDRL.

       (3)  Thus, the letters offer no new substantive medical evidence in the applicant's case.

3.  The evidence of record shows the applicant's case was thoroughly reviewed and carefully considered throughout the entire physical disability evaluation process.  The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  Thus, the applicant's PEB proceedings are presumed proper and equitable.  Therefore, the applicant is not entitled to correction of his records or an adjustment of his disability rating.

4.  Statutory and regulatory guidance provides that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition can only be rated to the extent that the condition limits the performance of duty.  The VA (and some other Government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impairs the individual's industrial or social functioning.  Moreover, the law requires the VA to give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other Government agency), in its discretion, awarded the applicant a disability rating for conditions that were determined to meet Army retention standards is a prerogative exercised within the policies of that agency.

5.  Therefore, in view of all of the foregoing, there is no basis for granting the requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090002079, dated 8 October 2009.




      __________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)                                         AR20100018886



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018886



17


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1