IN THE CASE OF:	  

		BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110000443 


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 a determination be made by the Physical Evaluation Board (PEB) that he should be retired by reason of physical disability with a
60 percent (%) disability rating percentage retroactive to 1997 and payment of all back pay and allowances he may be due.

2.  The applicant states on 25 November 1997, a formal PEB made a determination that he should be retired by reason of physical disability with a 60% disability rating and he concurred with the findings and recommendation of that board.  However, the U.S. Army Physical Disability Agency (USAPDA) arbitrarily modified the findings and recommendations of the PEB and determined he was ineligible for compensation due to the date of onset of his disability.  He goes on to state that in January 1998 he contacted the PDA because he had not received any of his separation documents and he was informed that the PEB proceedings had been modified in that his condition existed prior to service (EPTS) and that he was not entitled to compensation.  He further states he made several inquiries through the Secretary of the Army and his congressional representatives and was always told that the PDA had the authority to do so; however, no one has ever explained why such decisions can be made without the member having a chance to rebut the decision.  He continues by stating that the PEB addressed the issue of EPTS before making its decision and all of the appropriate authorities addressed the issue at every step of the process.  As a result he was discharged from the New York Army National Guard (NYARNG) without separation pay after serving 6 years of continuous active duty.


3.  The applicant provides a Table of Contents (Tabs A – K) containing a list of all supporting documents with his application.

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 NYARNG on 23 May 1979 and he served until he was honorably discharged in the rank/grade of staff sergeant (SSG)/E-6 on
25 June 1981 to accept an appointment as a commissioned officer.

3.  A consultation sheet contained in the applicant’s records show that on
17 February 1981, a physician noted the applicant had a few fibrotic densities at the left base (lower left lobe) most likely secondary to an old pulmonary infection and that he was acceptable.

4.  On 26 June 1981, he was commissioned as second lieutenant in the NYARNG.  He was promoted to first lieutenant on 25 June 1984.

5.  On 20 May 1985, he was ordered to active duty in the Active Guard Reserve (AGR) Program and he was promoted to captain (CPT) on 2 September 1986.

6.  On 4 October 1992, the applicant was diagnosed as having a complete left bundle branch block.  He was discharged on aspirin and sublingual Nitroglycerin, as needed.

7.  Although the specific facts and circumstances are not contained in the available records, his record indicates an Army Efficiency and Physical Fitness Board was conducted which recommended the applicant’s Federal Recognition be withdrawn due to moral and professional dereliction of duty based on the use of illegal drugs.


8.  On 27 January 1993, the applicant’s Federal Recognition was withdrawn and he was honorably released from active duty (REFRAD) due to completion of required service.  He was also discharged from the NYARNG and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He completed 7 years, 8 months, and 8 days of net active service during this period.

9.  On 11 May 1995, the applicant was granted disability insurance benefits by the Social Security Administration effective 4 October 1992.

10.  On 13 February 1997, the command surgeon of the U.S. Army Reserve Personnel Center (ARPERCEN) submitted a request to the Commander, Walter Reed Army Medical Center (WRAMC) requesting the applicant be considered by a Fitness for Duty Evaluation (FFDE) and Medical Evaluation Board (MEB).

11.  On 13 July 1997 an MEB diagnosed the applicant as having chest pain syndrome and determined he was medically unacceptable.  The MEB recommended the applicant's referral to a PEB.  The applicant indicated he did not desire to continue on active duty and he agreed with the findings and recommendations of the MEB.

12.  On 25 August 1997, the PEB returned the applicant’s case to the PEB Liaison Officer at WRAMC contending that it was unable to evaluate the case based on the available information.  The PEB requested that the following information be provided no later than 15 October 1997:

* A statement concerning the applicant’s cardiac diagnosis (what was it?)
* The etiology of the officer’s chest pain, indicate the type and date of tests done to determine this diagnosis
* A statement indicating that this board is determining fitness for duty only, in that the officer is not eligible for compensation under the disability system

13.  On 21 October 1997, a PEB convened at WRAMC and reviewed the diagnosis of chest pain with normal coronary arteries and left bundle branch block.  The PEB concluded there was sufficient evidence to substantiate an EPTS condition for which he was now unfit.  It also opined that his condition had not been aggravated by service but was the result of natural progression.  The PEB found the applicant was physically unfit and recommended his separation without disability benefits.


14.  The applicant did not concur with the findings and recommendations of the PEB and demanded a formal hearing of his case.

15.  On 25 November 1997, a formal PEB convened at WRAMC and found that based on the available evidence the applicant was eligible for consideration for compensation.  The PEB found the applicant unfit for duty and recommended the applicant be permanently retired with a 60% disability rating.  The applicant concurred with the findings and recommendations of the PEB.

16.  The findings and recommendations of the PEB were forwarded to the USAPDA and on 11 February 1998 the USAPDA modified the PEB results to show that he should be separated without disability benefits.  The USAPDA opined that because the applicant was determined fit at the time of his REFRAD in January 1993, his current unfit condition occurred while he was not entitled to basic pay.

17.  The applicant appealed the USAPDA's decision to the Army Physical Disability Appeals Board (APDAB) and on 9 April 1998, the APDAB affirmed the decision of the USAPDA and denied the applicant’s appeal.

18.  On 10 September 2005, the applicant was promoted to major in the USAR with a date of rank of 1 September 1993.  On 14 January 2008, he was honorably discharged from the USAR after failing to provide a completed military service obligation (MSO) election statement. 

19.  In the processing of this case, on 21 October 2011, a staff advisory opinion was obtained from the USAPDA.  The advisory official opines that the applicant’s PEB findings and recommendations were changed because he was determined to be fit at the time of his REFRAD in 1993 and that his present condition occurred while he was not entitled to basic pay.  The advisory official further stated that the applicant’s condition could be considered compensable from the standpoint that his condition had not changed significantly from the time of his REFRAD until the time of his PEB; however, the most he would be able to qualify for would be a 10% disability rating and separation with severance pay.  The USAPDA recommended that his records be corrected to show he was discharged with a 10% disability rating for angina pectoris, analogous to VASRD 7005, with entitlement to severance pay.

20.  The advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 15 December 2011, the applicant responded through his counsel to the effect that the advisory 


opinion from the USAPDA should be disregarded because it is based on conclusions not supported by logical rationale.  Counsel states the applicant was properly evaluated by an MEB and a PEB and found to be unfit for duty with a 60% disability rating and that decision should be upheld, not the recommendation for a 10% disability rating and severance pay.  She also states the USAPDA abused its authority in modifying the findings of the PEB after the applicant had appeared before a formal board with counsel with no explanation which violated the applicant’s due process rights and failed to provide the applicant with a fair hearing.

21.  The applicant’s records do not contain and the applicant did not provide the documents used in the MEB/PEB and USAPDA decisions.  Additionally, there is no evidence of record that shows he was declared unfit for duty or separation at the time he was REFRAD in January 1993.

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  That regulation also provides the provisions for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier’s disability ratings. (emphasis added)

23.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based upon the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.

24.  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.

25.  Army Regulation 635-40, appendix B, paragraph 10 states that when considering EPTS cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into active service, less natural progression occurring during active service.

26.  Army Regulation 635-40, paragraph 4-17 provides guidance for the PEB’s.  It states that PEB’s are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board and its findings and recommendations may be revised.

27.  Department of Defense Instruction (DODI) 1332.38, Physical Disability Evaluation provides, in paragraph 4-2 that members of the Reserve components who are not on call to active duty of more than 30 days and who are medically disqualified for impairments that are unrelated to the member’s status and performance of duty shall be referred into the Physical Disability Evaluation System (PDES) solely for a fitness for duty determination upon request of the member or when directed by the Secretary concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be permanently retired by reason of physical disability with a 60% disability rating has been noted and appears to lack merit.

2.  While it is difficult at best to ascertain what documents were presented to the MEB/PEB and USAPDA in 1998, some 14 years ago, the primary issue in this case appears to be whether the applicant was fit for duty when he was REFRAD in 1993.

3.  After reviewing the available evidence there is no evidence to show he was unfit for duty or separation at the time of his REFRAD in 1993.  It is also noted that while his DD Form 214 shows that he was REFRAD due to completion of required service, in actuality, he was REFRAD and discharged from the NYARNG because his Federal Recognition was withdrawn due to his use of illegal drugs.

4.  His evaluation report ending on 27 January 1993 clearly shows that up until the time he was boarded for moral or professional dereliction of duty, he demonstrated the capacity for success in positions of increased responsibility.  This in itself creates a presumption of fitness.

5.  Notwithstanding the recommendation of the USAPDA that the applicant be granted a 10% disability rating with severance pay, the evidence of record indicates that at the time the applicant was REFRAD in 1993 he was deemed fit 


for duty.  By virtue of the fact he was not entitled to basic pay when he was considered by the PEB, he was not entitled to disability compensation by the Department.

6.  Accordingly, there appears to be no basis for granting the applicant's 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 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)                                         AR20110000443



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ABCMR Record of Proceedings (cont)                                         AR20110000443



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