BOARD DATE:	 10 April 2012 

		DOCKET NUMBER:  AR20110018532 


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.  to be restored to the Temporary Disability Retired List (TDRL),

	b.  to be placed on the Permanent Disability Retired List (PDRL), or

	c.  to be discharged with severance pay.

2.  The applicant states:

* he was removed from the TDRL and separated from the military
* he received orders stating he was fit to return to duty
* the Military Entrance Processing Station (MEPS) said he was not fit for duty during the enlistment process
* he should have been restored to the TDRL or placed on the PDRL

3.  The applicant provides:

* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* Department of Veterans Affairs (VA) Rating Decision, dated 24 February 2009
* medical records



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 17 May 2006 and trained as a wheeled vehicle mechanic.

2.  On 25 April 2008, an MEB diagnosed the applicant with rhabdomyolysis (breakdown of skeletal muscle tissue), bilateral knee pain, right wrist sprain, colonic polyps, nephrolithiasis (kidney stone), chronic low back pain, and cystic acne.  The MEB recommended referral to a PEB.  He agreed with the MEB's action on 30 April 2008.

3.  On 6 June 2008, a PEB found the applicant physically unfit due to generalized myasthenia following rhabdomyolysis evaluated as myasthenia gravis.  The PEB recommended a combined rating of 30 percent and his placement on the TDRL with reexamination during December 2009.

4.  On 31 July 2008, the applicant retired by reason of temporary disability and was placed on the TDRL the following day.

5.  His TDRL examination is not available.

6.  On 15 June 2010, a PEB determined his condition had improved to the extent he was found fit for duty.  His DA Form 199, dated 15 June 2010, states a neurology evaluation in June 2009 found "normal muscle tone and bulk" with a normal neurological examination.  The neurologist was "unable to find any specific muscle weakness."  During the evaluation at the University of Colorado Neuromuscular Office in September 2009, no abnormalities were found in extensive testing.  During the forearm exercise test, the physician suspected "that the exercise was submaximal."  The applicant declined a muscle biopsy.  A subsequent examination on 23 December 2009 found no evidence of muscle wasting and muscle strength was rated 5/5 on examination.  The physician concluded the applicant's muscles were not "weakened to a point where it in any way disables him."  The PEB recommended his return to duty as fit.  The applicant concurred with the PEB findings and recommendation and he waived a formal hearing on 6 July 2010.

7.  A memorandum from the TDRL coordinator, U.S. Army Medical Department Activity, Fort Carson, Colorado, dated 6 July 2010, states, "I spoke to him about his election options, time limits, and changes of status and pay."

8.  On 7 July 2010, the U.S. Army Physical Disability Agency approved the PEB's findings and recommendation.

9.  He was removed from the TDRL on 8 August 2010.

10.  His Election Relative to Enlistment document states he is entitled to reenlist within 90 days following his removal from the TDRL; however, there is no evidence that he elected to reenlist in the RA within 90 days following his removal from the TDRL or declined to reenlist in the RA within 90 days following his removal from the TDRL.

11.  In support of his claim, he provides a DVA Rating Decision, dated 24 February 2009, which shows he is receiving service-connected disability compensation for:

* post-rhabdomyolysis myopathy (claimed as myasthenia gravis) – 30 percent
* lumbar spine degenerative disc disease – 10 percent
* right knee degenerative joint disease – 10 percent
* left knee degenerative joint disease – 10 percent
* right wrist degenerative joint disease – 10 percent
* right ankle strain – 0 percent
* chronic constipation – 0 percent

12.  He also provides numerous medical records.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that after establishing the fact that a Soldier is unfit because of physical disability and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability.  Percentage ratings reflect the severity of the Soldier's medical condition at the time of rating.

14.  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.

15.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

16.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA has the authority to reevaluate a veteran's medical condition periodically and revaluate his or her disability evaluation percentage.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the MEPS said he was not fit for duty when he tried to enlist.  However, he provided no evidence to support this contention.  The evidence shows he had the right to reenter active duty within 90 days following his removal from the TDRL but did not do so.

2.  His contention that he should be restored to the TDRL or placed on the PDRL was noted.  However, the evidence shows the TDRL PEB found him fit for duty on 15 June 2010 and he agreed with these findings and recommendation on 6 July 2010.

3.  The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  The Army's rating was dependent on the severity of his condition at the time the rating was made.  The VA has the responsibility and jurisdiction to recognize any changes in that condition over time by adjusting his disability rating.

4.  There is insufficient evidence to show the applicant's condition was improperly rated by the TDRL PEB or that his removal from the TDRL for being fit for duty was not in compliance with laws and regulation.  Regrettably, there is 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 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)                                         AR20110018532



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ABCMR Record of Proceedings (cont)                                         AR20110018532



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