IN THE CASE OF:	 

		BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110023637 


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 his 1988 physical evaluation board (PEB) rating.  

2.  The applicant states his discharge evaluation was not properly rated based on irregular pupil and centralized cornea scar and eye aphakia.

3.  The applicant provides:

* Orders D158-10 (permanent retirement)
* DA Form 2173 (Data For Retired Pay)
* Medical Evaluation Board (MEB) Narrative Summary (NARSUM)
* Temporary Disability Retired List (TDRL) Evaluation
* TDRL NARSUM
* Compensation and Pension Examination
* Incomplete Department of Veterans Administration (VA) rating decision
* Ophthalmologist statement
* Selected chronological records of medical care

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 he enlisted in the Regular Army on 25 November 1980 and he held military occupational specialty 11B (Infantryman).  He served in Korea from June 1985 to October 1986 and attained the rank/grade of sergeant (SGT)/E-5. 

3.  On 29 January 1987, he suffered a contusion of the eyeball.  He was striking a nail when it flew and hit his left eye.  He pulled the nail out of his eye and reported to the emergency room.  His chronological records of medical care shows he underwent corneal suturing with lens extraction and anterior vitrectomy of the left eye on an emergency basis.  He subsequently underwent a series of evaluations and/or examinations.  His NARSUM noted the following:  

	a.  He was evaluated by the ophthalmologist whose findings were that there was an obvious penetration of the left cornea just superior and medial to the mid points of the cornea.  Visual acuity was 20/20 in the right eye and 20/40 of the left eye.

	b.  His final diagnosis was penetrating injury of the left eye with cornea and lens disruption.  He was considered aphakic and his final visual outcome was uncertain.  At best, he would require thick aphakic spectacles or contact lens correction in order to see clearly out of the left eye.  He was determined to be unfit for active duty in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) and recommended for entry into the physical disability evaluation system (PDES).

4.  On 25 June 1987, an MEB convened at Winn Army Community Hospital, Fort Stewart, GA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of penetrating injury of the left eye with cornea and lens disruption.  The MEB recommended he be referred to a PEB.  He agreed with the MEB's findings and recommendation and indicated that he did not desire to continue on active duty.

5.  On 23 July 1987, an informal PEB convened in Fort Gordon, GA.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to aphakia, left eye, secondary to penetrating injury with vitreous herniation into anterior chamber.  He was rated under the VA Schedule for Rating Disabilities (VASRD), assigned code 6029, and granted a 30% disability rating.  The PEB recommended that the applicant be placed on the TDRL with reexamination in July 1988.  The applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing on the same date.

6.  He was honorably retired on 4 September 1987 under the provisions of paragraph 4-24e of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of temporary disability.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 6 years, 8 months, and 4 days of active service.  

7.  On 4 August 1988, he underwent a TDRL medical reexamination at Wright Patterson Air Force Base, OH.  The NARSUM shows he underwent full examination of the eyes due to status post perforating injury, left eye with aphakia, which revealed a visual acuity of 20/20 of the right eye and 20/80 of the left eye.  The medical officer stated the applicant should continue the contact lens rehabilitation of the left eye.  He should also be reevaluated at this point for continued active duty service as his condition is as stable as can ever be expected.  He currently meets the standards for worldwide duty.

8.  On 21 August 1988, he appealed his TDRL examination.  He stated:

* His infantry specialty requires food eye perception
* He has been having trouble with the contact lenses
* His contact lenses have caused irritation, redness, and scratches around the eye
* He felt he could not perform the duties for military service

9.  On 2 September 1998, an informal TDRL PEB convened at Fort Sam Houston, TX, found him fit for duty.  The PEB stated that based on the review of the TDRL examination, his former disability - specifically left eye with aphakia status post perforating injury with visual acuity of 20/80, is no longer considered disabling.  There were presently no restrictions which would have precluded returning to military service and no prohibition against normal physical activities expected for reasonable performance.  

10.  On 13 September 1998, he elected not to concur with the findings and recommendations of the TDRL PEB.  He demanded a formal hearing without personal appearance.  He also submitted a statement from a military ophthalmologist who opined that contact lenses should not be worn by combat Soldiers as they could not be cared for properly in a field environment.  Improper care creates a high risk for corneal infection and vision loss.  He would not be deployable wearing contact lenses.

11.  On 30 September 1988, a formal TDRL PEB convened at Fort Sam Houston, TX, and again found him fit for duty.  The PEB stated that during formal proceedings, the PEB reevaluated all available medical records and statements submitted by counsel on behalf of the applicant.  Based on the review of the TDRL examination, his former disability - specifically left eye with aphakia status post perforating injury with visual acuity of 20/80, is no longer considered disabling.  There were presently no restrictions which would have precluded returning to military service and no prohibition against normal physical activities expected for reasonable performance.  

12.  However, on 3 October 1988, the applicant's case was informally reconsidered based on additional review of the medical record of evidence of the applicant's legal counsel.  Based on the review, the PEB found the applicant remained unfit to reasonably perform the duties required of his previous grade and military specialty.  His condition was considered sufficiently stable for final adjudication.  The PEB determined he remained unfit, awarded him a 30% disability rating, and recommended his permanent retirement.  The applicant concurred with the findings and recommendations of the reconsideration.

13.  On 24 October 1988, the U.S. Military Personnel Center, Alexandria, VA, published Order D204-3 removing him from the TDRL effective 7 November 1988 and permanently retiring him under Title 10, U.S. Code, section 1201, with a 30% rating.

14.  Army Regulation 635-40 establishes the 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.  

15.  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 of at least 30%.  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 at less than 30%.

16.  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.  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.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant appears to be appealing his PEB rating. 

2.  The applicant sustained an eye injury.  He was seen by various medical specialists and recommended for entry into the PDES.  He underwent an MEB which recommended that he be considered by a PEB.  The PEB found his eye condition prevented him from performing his duties and determined he was physically unfit for further military service.  The PEB recommended placing him on the TDRL.  He agreed with the recommendation.  

3.  He underwent a TDRL examination that revealed a remarkable improvement in his visual acuity.  An informal PEB found him fit for duty.  He disagreed.  A subsequent formal PEB reviewed the TDRL examination, his former disability - specifically left eye with aphakia status post perforating injury with visual acuity of 20/80, and found it no longer considered disabling.  There were no restrictions which would have precluded returning to military service and no prohibition against normal physical activities expected for reasonable performance.  The formal PEB also found him fit for duty.

4.  However, shortly after the formal PEB's finding, the applicant's case was informally reconsidered based on additional review of the medical record of evidence of the applicant's legal counsel.  Based on the review, the PEB found he remained unfit to reasonably perform the duties required of his previous grade and military specialty.  His condition was considered sufficiently stable for final adjudication.  The PEB rated him at 30% disability rating and recommended his permanent retirement.  He concurred.

5.  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 for his eye condition at the time.  There is no evidence to support a different rating.
6.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the PEB's recommendation.  There is no error or injustice in this case.  Therefore, in view of the foregoing evidence, he is not entitled to the 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)                                         AR20110023637



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ABCMR Record of Proceedings (cont)                                         AR20110023637



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