IN THE CASE OF:
BOARD DATE: 5 July 2012
DOCKET NUMBER: AR20110016489
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, correction of his medical discharge with severance pay to a medical retirement.
2. He states:
* the physical evaluation board (PEB) should have retired him from military service due to the nature and progressiveness of his disability
* he was discharged for medical reasons with severance pay without consideration for retirement
3. He provides:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* medical evaluation board (MEB) initiation and retention memoranda
* Department of Veterans Affairs (VA) disability rating decisions
* numerous VA medical records
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 3 April 1990. Upon completion of initial entry training, he was awarded military occupational specialty (MOS) 94B (Food Service Specialist). He served in Southwest Asia from 7 October 1990 to 22 April 1991. The highest rank and pay grade he held was specialist/
E-4.
3. A memorandum from the U.S. Army Medical Department Activity, Fort Hood, dated 2 April 1993, indicates an MEB had been initiated on the applicant. His Appointment Slip indicates he was about to begin phases I and II of the MEB process.
4. A second memorandum from the U.S. Army Medical Department Activity, Fort Hood, dated 2 April 1993, requests to retain the applicant past his expiration of term of service of 2 April 1993. The medical reason for retention was cited as the applicant's pending MEB with the Internal Medicine clinic for further processing through the Army Physical Disability Evaluation System (PDES). The memorandum indicated the applicant's MEB packet was expected to be forwarded to the PEB on 13 May 1993 for action and his expected date of release from active duty was 4 October 1993.
5. On 9 April 1993, he was evaluated by an MEB. After consideration of clinical records, laboratory findings, and a physical examination, the MEB found he had diabetes mellitus. He was referred to a PEB.
6. During the processing of his MEB, he indicated he did not desire to continue on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). He agreed with the findings and recommendation of the MEB.
7. On 26 April 1993, he was placed on a permanent physical profile for diabetes mellitus with a physical profile serial of 311111. His DA Form 3349 (Physical Profile) indicated the applicant must be assigned to a non-isolated area and must have immediate access to meals, ready-to-eat, or other ration items. He also must be assigned to an area where appropriate storage of insulin was guaranteed.
8. On 3 May 1993, an informal PEB determined he was physically unfit for diabetes mellitus (VA Schedule for Rating Disabilities (VASRD) code 7913). The PEB Proceedings indicated the applicant was unable to reasonably perform duty commensurate with his grade and MOS due to the onset of diabetes. The PEB recommended his separation with severance pay with a 10-percent disability rating for diet controlled diabetes. The elections of his rights are not available.
9. He was honorably discharged on 8 June 1993 under the provisions of Army Regulation 635-40, paragraph 4-24b(3), by reason of physical disability with severance pay. He completed 3 years, 2 months, and 6 days of total active service.
10. The applicant provides copies of his VA Rating Decisions.
a. On 10 February 2004, he was granted service connection for:
* bilateral nonproliferative diabetic retinopathy, claimed as blurred vision (0 percent)
* peripheral neuropathy, right lower extremity (10 percent)
* peripheral neuropathy, left lower extremity (10 percent)
* peripheral neuropathy right upper extremity (10 percent)
* peripheral neuropathy, left lower extremity (10 percent)
* peripheral neuropathy, left upper extremity (10 percent)
* erectile dysfunction (0 percent)
* and entitlement to special monthly compensation based on loss of use of a creative organ was granted from 19 September 2003
b. On 2 August 2004, the VA determined his disability ratings were continued based on a new claim for benefits on 27 April 2004:
* diabetes mellitus (40 percent)
* peripheral neuropathy, right upper extremity (10 percent)
* peripheral neuropathy, left lower extremity (10 percent)
* peripheral neuropathy right upper extremity (10 percent)
* peripheral neuropathy, left lower extremity (10 percent)
* peripheral neuropathy, left upper extremity (10 percent)
* erectile dysfunction (0 percent)
11. He provides 323 pages of VA medical records for the period 1993 through 2011. These documents include problem lists, medications, laboratory results, immunizations, discharge summaries, consult requests, and progress notes.
12. A medical review performed on 11 June 2012 revealed the applicant's serum glucose was controlled by diet until 10 days prior to his expiration of term of service (ETS). At that time, he apparently presented to the clinic with a high serum glucose level and was started on insulin.
13. Army Regulation 635-40 establishes the Army PDES 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 or her office, grade, rank, or rating. PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.
14. Army Regulation 635-40, appendix B, states the VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Because of differences between Army and VA applications of rating policies, differences in ratings may result. Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating. Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition.
15. The VASRD assigns code 7913 (diabetes mellitus) a 10-percent rating when it is mild, controlled by a restricted diet, without insulin, and without impairment of health or vigor or limitation of activity; a 20-percent rating when it is moderate, with moderate insulin or oral hypoglycemic agent dosage, a restricted diet, without impairment of health or vigor or limitation of activity; and a 40-percent rating when it is moderately severe, requiring large insulin dosage, a restricted diet, and careful regulation of activities, i.e., avoidance of strenuous occupational and recreational activities.
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 rated at least 30 percent.
17. 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 rated at less than 30 percent. Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.
18. 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 an error or injustice in the Army rating.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions that the PEB should have retired him from military service due to the nature and progressiveness of his disability and that he was discharged for medical reasons with severance pay without consideration for retirement are acknowledged. However, his service record does not indicate an error or injustice exists in this case.
2. An informal PEB found him unfit for military service for diabetes mellitus rated at 10-percent disabling for diet-controlled diabetes. As a result he was discharged from active duty under the provisions of Army Regulation 635-40 by reason of disability with severance pay with 3 years, 2 months, and 6 days of creditable military service.
3. VASRD code 7913 requires insulin or oral hypoglycemic agent dosage, a restricted diet, without impairment of health or vigor or limitation of activity to qualify for a 20-percent rating. The evidence shows the applicant's diabetes was initially controlled by diet, then he was placed on insulin prior to his ETS. Therefore, it would be equitable to show he was separated with a 20 percent disability rating.
4. The law provides for retirement of a member who has at least 20 years of service or a disability rated at least 30 percent. Since there is insufficient evidence to show he should have been given a rating greater than 20 percent he did not meet the requirements for a medical retirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
___X____ ___X____ ____X___ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was assigned a 20-percent disability rating for diabetes mellitus and paying him any increased disability severance pay due as a result of this correction.
2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to correcting his medical discharge with severance pay to show medical retirement.
_______ _ 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) AR20110016489
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20110016489
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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