IN THE CASE OF:	 

		BOARD DATE:	  18 January 2012

		DOCKET NUMBER:  AR20110013785 


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 correction of her record to show she was medically retired by reason of physical disability vice being removed from the temporary disability retired list (TDRL) with entitlement to severance pay.

2.  The applicant states:

* She was discharged from the TDRL without a medical examination
* On her exit examination, she was diagnosed with a bipolar condition; but this condition was not diagnosed by the physical evaluation board (PEB)
* Two weeks after her release from the service she was hospitalized due to a bipolar condition
* This condition was rated as service-connected by the Department of Veterans Affairs (VA)
* She was retired from civilian employment due to this disability with a 100% rating
* Failure to undergo a TDRL physical examination and failure to consider all her medical conditions led to this injustice

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Civilian hospital psychological and psychiatric evaluations, history and physical, and discharge summary


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 she enlisted in the Regular Army on 5 March 1986 and she held military occupational specialty 91A (Medical Specialist).  She attained the rank of specialist four (SP4)/E-4.

3.  Her Narrative Summary, dated 21 November 1988, shows she injured her right knee in basic training in 1986.  She was subsequently diagnosed as having anterior cruciate deficient knee.  She underwent anterior cruciate ligament (ACL) reconstruction of the right knee in June 1988.  Military doctors determined she was non-deployable and could not perform in a field environment.  She was recommended for entry into the physical disability evaluation system (PDES).  

4.  On 22 November 1988, a medical evaluation board (MEB) convened at Ireland Army Hospital, Fort Knox, KY, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB determined the applicant suffered from an anterior cruciate deficient knee, status post knee reconstructive with moderate loss of motion.  The MEB recommended referral to a PEB.  The applicant agreed with the MEB's findings and recommendation on 23 November 1988 and she indicated she did not desire to continue on active duty.

5.  On 1 December 1988, an informal PEB convened at Fort Sam Houston, TX, and based on a review of the medical records, the PEB found the applicant was physically unfit to perform duties in her grade and specialty by reason of anterior cruciate deficient knee - status post knee reconstruction with loss of motion.  The PEB rated her under the VA Schedule for Rating Disabilities (VASRD) and recommended a physical disability rating of 30% and placement on the TDRL with reexamination in June 1990.  The applicant concurred with the PEB findings and recommendations and waived a formal hearing of her case.

6.  On 20 January 1989, she was honorably retired and placed on the TDRL.  The DD Form 214 she was issued shows she was retired under the provisions of paragraph 4-24e(2) of Army Regulation 635-40 ((Physical Evaluation for Retention, Retirement, or Separation) by reason of temporary disability.  She had completed 2 years, 10 months, and 16 days of creditable military service.  

7.  On 30 March 1990, she was issued orders attaching her to Ireland Army Hospital, Fort Knox, KY, effective June 1990, for the purpose of a periodic physical examination.

8.  She subsequently underwent a TDRL physical examination on 25 June 1990 that showed her medical condition was still unstable.  The military doctor opined that her condition warranted at least another arthroscopy to evaluate the possibility of internal derangement of the meniscus. 

9.  On 6 July 1990, a TDRL PEB convened at Fort Sam Houston, TX, and found the applicant's condition improved since being placed on the TDRL.  She still had mild right quad atrophy and very mild instability as well as pain that precluded her performance of duties.  She remained unfit to reasonably perform the duties required of her grade and military specialty.  However, her condition was considered sufficiently stable for final adjudication.  She was rated 10% disabled under the VASRD code applicable for her medical condition.  Accordingly, the PEB recommended she be separated with entitlement to severance pay, if otherwise qualified.

10.  The applicant was informed of the PEB's findings and recommendations and on 14 July 1990, she elected not to concur and demanded a formal hearing and appointment of counsel to represent her.  

11.  On 30 July 1990, after discussing her case with legal counsel, she withdrew her application for a formal hearing and concurred with the findings of a 10% disability rating and entitlement to severance pay.

12.  On 2 August 1990, the U.S. Total Army Personnel Command, Alexandria, VA, published Orders D152-16 removing the applicant from the TDRL and discharging her from the Army effective 2 August 1990 with entitlement to severance pay.  

13.  She submitted various documents, dated after her retirement, including hospital psychological and psychiatric evaluations, history and physical, and discharge summary from Lincoln Trail Hospital that show she was admitted on 30 May 1989 and she was discharged on 7 June 1989.  She was diagnosed with major depression, dependent personality, and severe psychological stressors.
14.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

15.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment including officer procurement programs, retention and separation including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD).  Ratings can range from 
0 to 100 percent, rising in increments of 10 percent.  

16.  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 rating at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating less than 30 percent.  

17.  Title 38, U.S. Code, sections 1110 and 1131, permit 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant sustained a knee injury in training and subsequently underwent ACL reconstruction.  Her post-surgery status led to restrictions that impacted her deployability and ability to perform in a field environment.  She subsequently underwent an MEB which recommended she be given a PEB.  She agreed with this recommendation. 

2.  The PEB found her knee condition prevented her from performing her military duties and determined that she was physically unfit for performance of military duty by reason of physical disability; but her condition had not sufficiently stabilized at the time to permit an accurate assessment of a permanent degree of disability.  Therefore, the PEB recommended placing her on the TDRL by reason of temporary disability.  The applicant concurred.  

3.  Contrary to her contention that she was not given a TDRL reexamination, the evidence of record shows she was issued travel orders and did in fact undergo a TDRL reexamination.  Upon reevaluation, a TDRL PEB determined her knee condition continued to preclude her from reasonable fulfillment of her military duties and that she remained unfit and recommended separation from the Army with entitlement to severance pay.  The applicant did not concur and demanded a formal hearing with a personal appearance.  

4.  She consulted with counsel, withdrew her application for a formal hearing, and concurred with the findings of a 10% disability rating, and entitlement to severance pay.  Since she was rated at less than 30%, she could not have been permanently retired.  Accordingly, she was removed from the TDRL and discharged from the Army.  

5.  At no time was she diagnosed with bipolar disorder or any other condition during her military service.  She provides medical documents, issued by a civilian facility, after her temporary retirement, that show she was diagnosed with various conditions.  However, none of these conditions existed during her military service and even if they did, there is no evidence any of these conditions rendered her unable to perform the duties required by her military specialty and grade.

6.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  The applicant was properly rated at 10% for her knee condition after a TDRL reexamination in 1990.  There is no evidence to support a higher rating or medical retirement.

7.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.  






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)                                         AR20110013785



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ABCMR Record of Proceedings (cont)                                         AR20110013785



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