IN THE CASE OF:	

		BOARD DATE:	    9 February 2012

		DOCKET NUMBER:  AR20110013488 


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 discharge with severance pay be changed to a medical retirement.

2.  The applicant states he recently learned he is off the Temporary Disability Retired List (TDRL) and his conditions have become increasingly worse, particularly his back issue.  

	a.  He feels his review failed to consider future issues.  

	b.  His official discharge from the Army was not until 17 August 2010; however, upon a discussion with someone in the TDRL office he was actually supposed to be removed officially in 2005.  Based on this, he considers his discharge falls within the time frame of the 2008 National Defense Authorization Act (NDAA).

	c.  No counselor signed his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 31 July 2000, thereby making it null and void.

3.  The applicant provides:

* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 23 January 1999
* DD Form 2648 (Preseparation Counseling Checklist), dated 13 April 1999
* orders, dated 26 October 1999, placing him on the TDRL
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 18 December 1999
* PEB proceedings, approved on 9 August 2000
* orders, dated 18 August 2000, removing him from the TDRL
* Certificate of Creditable Coverage, dated 18 August 2010
* service medical records from May - October 1998
* Department of Veterans Affairs (VA) medical records from July 2008 - June 2011

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.  He enlisted in the Regular Army in pay grade E-4 (specialist) on 1 February 1996 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 92G (Food Service Specialist).  

3.  In June 1997, he sustained a back injury when he slipped and fell on some grease on the floor in the kitchen of the dining facility at Ft Lewis, WA.  This injury was determined to be in the line of duty.  He was diagnosed with a Bipolar Disorder I on 27 October 1998.

4.  His Medical Evaluation Board (MEBD) Proceedings, Narrative Summary, and initial PEB Proceedings are not available for review.

5.  Headquarter, I Corps and Fort Lewis Military Personnel Division, Fort Lewis, WA Orders 299-0017, dated 26 October 1999, released him from assignment and duty because of physical disability incurred while entitled to basic pay and placed him on the TDRL.

	a.  Effective date of retirement was 18 December 1999 and he was placed on the TDRL effective 19 December 1999.
	b.  His percentage of disability was 40 percent.

6.  The results of his TDRL examination were not available for review.

7.  On 31 July 2000, an informal PEB found him physically unfit for:

9432
Bipolar I Disorder in partial remission with medication.  Rated as mild.
10%



5299 - 5295
Chronic low back pain
10%
Based on the TDRL examination, the PEB found he remained unfit to reasonably perform the duties required by his previous grade and MOS.  His current condition was considered sufficiently stable for final adjudication.

8.  The PEB recommended a combined rating of 20 percent and that he be separated with severance pay if otherwise qualified. 

9.  On 4 August 2000, the applicant acknowledged he had been advised of the findings and recommendations of the PEB and he had received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto.  The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

10.  Item 14 (Counselor's Statement) of his DA Form 199 was not filled out or signed.

11.  U.S. Army Physical Disability Agency (USAPDA) orders D161-17, dated 
18 August 2000, removed him from the TDRL and discharged him from the service because of permanent physical disability effective 18 August 2000.  His percentage of disability was 20 percent and he was entitled to severance pay.

12.  He provided a Certificate of Creditable Coverage, dated 18 August 2010, from the Department of Defense (DOD), Manpower Data Center, Seaside, CA that provides evidence of his prior health care coverage under one of the TRICARE administered programs.  The certificate shows his coverage began 
31 January 2000 and ended on 19 December 2004.

13.  The 2008 NDAA, section 3.1, effective 28 January 2008, provides that the Military Departments shall, to the extent feasible, utilize the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) in use by the VA in making a determination of a member's disability rating.  
14.  Section II (Rating Principles) of Appendix B (Army Application of the VASRD) to Army Regulation 635-40 (Physical Evaluation or Retention, Retirement, or Separation), then in effect, contained principles for rating disabilities.  The instructions were derived from and supplemented the VASRD where additional guidance or clarification was needed for processing Army disability cases.

	a.  Paragraph B-39b stated ratings for chronic low back pain of unknown etiology (mechanical low back pain) would begin with a zero percent.  Demonstrable pain on spinal motion or discovery of back pain etiology would warrant a 10 percent rating unless paravertebral muscle spasms were also present, in which case a 20 percent rating would be awarded.

	b.  Paragraph B-107e characterized the terms used in the VASRD for rating VASRD codes 9201 through 9511 (mental disorders).  These ratings included:

		(1)  Definite - 30 percent

* Does not require hospitalization
* Displays some signs or symptoms of mental illness on examination 
* Usually requires medication and or psychotherapy
* Usually there is job instability 
* Borderline social adjustment

		(2)  Mild - 10 percent

* Displays minimal signs or symptoms with probing 
* May require medication or psychotherapy, especially during times 	of stress 
* Adequate job adjustment 
* Adequate social adjustment

15.  38 Code of Federal Regulations (CFR) Part 4, Part 4 - Schedule for Rating Disabilities, in effect at the time, stated the rating schedule was primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.

	a.  Section 4.20 (Analogous ratings) stated that when an unlisted condition was encountered it was permissible to rate under a closely-related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology were closely analogous.  

	b.  Section 4.71a (Schedule of ratings—musculoskeletal system) provided the criteria for the level of disability for the following VASRD code for back pain:

	5295 Lumbosacral strain:

Severe; with listing of whole spine to opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion





40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position
20
With characteristic pain on motion
10
With slight subjective symptoms only
 
0
16.  Title 10, U.S. Code, 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 percent.

17.  Title 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

18.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  His orders for removal from the TDRL show he was discharged with severance pay effective 18 August 2000.  The certificate of coverage he submitted concerns medical coverage and does not affect his official discharge date of 18 August 2000.

2.  The 2008 NDAA provides that the Military Departments shall, to the extent feasible, utilize the VASRD in use by the VA in making a determination of a member's disability rating.  Therefore, as a matter of equity and policy, provisions of Department of Defense or Army regulations or guidelines relied upon by the PEB will not be considered by the ABCMR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication in all cases in which the applicant was discharged on or after 11 September 2001.

3.  The effects of the 2008 NDAA applies to those individuals discharged on or after 11 September 2011.  The applicant was removed from the TDRL and discharged from the service on 18 August 2000.  Therefore, the provisions of the 2008 NDAA do not apply in this case.

4.  He was placed on the TDRL with a combined disability rating of 40 percent.  Although his initial PEB is not available, it is reasonable to conclude he was assigned a disability rating of 30 percent for his bipolar disorder.  This 30 percent combined with a 10 percent rating for his back would be combined for a 
40 percent rating.

5.  The PEB, convened on 31 July 2000, concluded his current condition was considered sufficiently stable for final adjudication.  His bipolar disorder was determined to be in partial remission.  This would coincide with a 10 percent disability rating for his Bipolar I disorder in accordance with Appendix B of Army Regulation 635-40.  The PEB's disability rating for back pain was in accordance with both Appendix B of Army Regulation 635-40 and 38 CFR Section 4.71a.  

6.  His TDRL examination was not available for review.  Therefore, these determinations by the PEB must be presumed to be correct.  His disability rating was accurate at the time of his discharge.  It was not nor was it intended to be a prediction of his future medical condition.

7.  When he concurred with the PEB findings and waived a formal hearing he acknowledged he had received a full explanation of the results of the PEB and his legal rights.  The fact that the counselor failed to complete and sign his portion of the form does not invalidate the PEB.

8.  He contends his disabilities have increased, particularly his back condition. Disabilities which worsen after a Soldier is separated are treated by and compensated for by the VA.  Any claims or issues concerning treatment or compensation for service connected disabilities should be addressed to that Agency.  

9.  In view of the above, there is an insufficient basis to change his discharge with severance pay to a medical retirement 12 years after he was discharged.

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)                                         AR20110013488



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ABCMR Record of Proceedings (cont)                                         AR20110013488



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