IN THE CASE OF:	  

		BOARD DATE:  4 December 2012

		DOCKET NUMBER:  AR20120003830 


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, an increase of his physical evaluation board (PEB) rating.

2.  The applicant states, in effect:

* he was not properly rated by his PEB due to a lack of information
* his medical evaluation was not completed when his records were sent the medical evaluation board (MEB)
* His record contains three permanent profiles instead of the one that was sent to the review board in San Antonio, Texas, in July 2008
* The Department of Veterans Affairs (VA) has also diagnosed him with Post Traumatic Stress Disorder (PTSD), sleep apnea, and documented his hearing loss

3.  The applicant provides:

* DA Form 3349 (Physical Profile), dated 11 June 2008
* PEB Recommendation
* PEB Concurrence, dated 10 July 2008
* DA Form 3349, dated 1 October 2010
* Physical Disability Agency Scanning Record




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.  With prior enlisted service, the applicant enlisted in the U.S. Army Reserve (USAR) for 6 years on 11 March 2005.  He was ordered to active duty in support of Operation Iraqi Freedom, effective 2006.

3.  A Statement of Medical Examination and Duty Status shows that during May 2007 the applicant injured his back while he was mobilized to Iraq.  The injury was found to have been incurred in the line of duty.  He was treated in Iraq and returned to duty.

4.  On 15 October 2007, the applicant was placed on a temporary profile, due to mechanical lower back pain.  

5.  On 11 June 2008, the applicant was placed on a permanent profile for the following:

* Lumbago, Lumbar Spine Pain
* Chronic Headache with Dizziness
* Adjustment Disorder
* Hearing Loss, Mild

6.  The applicant's MEB and PEB Proceedings are not available for review with this case.  However, the available evidence shows that on 3 July 2008, the PEB found the applicant physically unfit for retention with a combined disability rating of 20 percent.  The PEB recommended that the applicant be separated from the Army with severance pay.

7.  On 10 July 2008, the applicant concurred with the PEB's recommendation and waived a formal hearing of his case.

8.  On 14 October 2008, the applicant was discharged, with severance pay, under the provisions of Army Regulation 635-40, due to a combat related disability.

9.  It appears that on an unknown date the applicant entered the USAR or he may never have been discharged.  His Chronological Statement of Retirement Points shows he has been attending inactive duty training to the present.  However, he submits a DA Form 3349 which shows that on 1 October 2010 he was placed on a permanent physical profile for the following:

* PTSD
* depression
* degenerative disc disease causing back pain 3-39h
* hearing loss

10.  The available evidence shows as of 18 February 2011 the applicant was assigned to a USAR, Troop Program Unit awaiting a Military Occupational Special Medical Retention Board (MMRB).

11.  On 9 March 2012, the Chief, Case Management Division notified the applicant of his choice to have his case considered by the Army Board for Correction of Military Records or the Department of Defense Physical Disability Evaluation Board.  He was told that his case would be placed on hold for 15 days pending his decision.  The applicant did not respond during the timeframe allowed.

12.  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.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

13.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, provides standards for medical retention and separation, including retirement.  Basically, members with conditions as severe as those listed in this chapter are considered 

medically unfit for further military service.  Normally, Reserve enlisted Soldiers who do not meet the fitness standards set in chapter 3 will be transferred to the Retired Reserve in accordance with Army Regulation 140-10 or be discharged from the USAR in accordance with Army Regulation 135-178.  They will be transferred to the Retired Reserve only if eligible and if they apply for transfer.

14.  Department of Defense Instruction 1332.38 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 
Army Regulation 40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

15.  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.

16.  The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel.  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.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.


2.  The applicant's records are vague as to whether or not he was actually ever discharged from the USAR on 14 October 2008.  However, he has provided no evidence to substantiate his contention that the 20 percent PEB rating he received in July 2008 should be increased.  To the contrary, his continued active participation in the USAR since October 2008 indicates that he was actually fit for duty.

3.  The available evidence shows he was awarded a 20 percent disability rating by the PEB, and his PEB Proceedings are not available.  There is no information contained in his official record and the applicant has submitted insufficient evidence to show the exact condition(s) for which he received his 20 percent rating.

4.  The available evidence suggests that he was assigned a disability rating based on the information available at the time and in accordance with the VASRD based on the severity of his condition(s).

5.  The applicant submits a DA Form 3349 showing he was placed on a permanent physical profile on 1 October 2010, which is 2 years after his PEB convened in July 2008.  If he is currently a member of the Reserve as his records suggests and awaiting an MMRB for conditions that worsened after his PEB, he should provide all of the relevant evidence to his attending physician for consideration by that board.

6.  The applicant has failed to show error or injustice in the actions taken by the Army in his case.  In view of the foregoing, his request should be denied.

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)                                         AR20120003830



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ABCMR Record of Proceedings (cont)                                         AR20120003830



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