BOARD DATE:	  23 October 2012

		DOCKET NUMBER:  AR20120005166 


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 an increase in his disability rating and, in effect, correction of his records to show he was retired by reason of physical disability instead of discharged by reason of physical disability with entitlement to severance pay.

2.  The applicant states:

* he was only considered for his right shoulder condition; however, there was no consideration for his left shoulder and his left little finger should have been rated higher than 0 percent
* he does not believe the medical evidence submitted was fully considered when awarding him a disability rating
* he does not have his Department of Veterans Affairs (VA) medical records and would like the government to request them

3.  The applicant provides some of his service 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 7 May 1987 and held military occupational specialty (MOS) 94B (Food Service Specialist).

3.  On 8 January 1988, he sustained a right shoulder injury when he attempted to move a wall locker in the unit barracks at Fort Bliss, TX.  He was evaluated the following morning at the aid station and treated with rest and a sling.

4.  He continued to have symptoms of instability and subluxation (a subluxation occurs when a small amount of instability in shoulder ligaments permits the shoulder to slip slightly out of its socket), although he never reported a dislocation that required reduction by a physician.  He subsequently had multiple evaluations and treatments by physical therapy and clinic physicians, but he did not respond to care.  His narrative summary, dated 15 August 1990, noted the following:

	a.  Examination of the right shoulder showed a well-healed surgical scar.  The right upper extremity was completely neurovascularly intact.  Shoulder range of motion (ROM) was as follows:  abduction at 100 degrees; flexion to 80 degrees; extension to 80 degrees; internal rotation to 70 degrees; external rotation to 45 degrees; external and internal rotation and flexion were limited by pain and sensation of extreme tightness in the joints.  Views of the right shoulder showed no bony abnormalities.

	b.  The applicant was referred to outpatient therapy to assist in the rehabilitation of his shoulder and hand.  He was issued a permanent physical profile with restriction against lifting over 20 pounds with his right arm, no push-ups, no overhead work, and no weapons handling.  He was unable to perform strenuous activities which involved the use of the right upper extremity.

	c.  He had a laceration of the right small finger suffered in October 1988 which damaged the flexor digitorium profundus and superficialis tendons as well as the ulnar digital nerve and artery.  These issues were repaired surgically.

	d.  In February 1990, the applicant underwent a surgical procedure to repair a Bankart lesion.  It was noted there was marked degenerative joint disease of the glenohumeral joint of his right shoulder.

	e.  His final diagnosis was that of degenerative arthritis of the right glenohumeral joint, late effect of recurrent subluxation, manifested by painful limitation of shoulder motion (ROM), 100 degrees abduction, 80 degrees flexion, 80 degrees extension, 70 degrees internal rotation, and 45 degrees external rotation).  Additionally, he was diagnosed with post-laceration repair flexor digitorium profundus, flexor digitorium superficialis, and ulnar digital nerve to the right small finger with residual flexion contracture and loss of sensation over the ulnar half of the digit.

	f.  The applicant was unable to satisfactorily perform the duties expected of a member of his rank and MOS.  Accordingly, he was referred to the Army Physical Disability Evaluation System (PDES).

5.  On 15 August 1990, a medical evaluation board (MEB) convened at Fort Bliss, TX, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of:

* degenerative arthritis of the right glenohumeral joint, late effect of recurrent subluxation, manifested by painful limitation of shoulder motion (ROM), 100 degrees abduction, 80 degrees flexion, 80 degrees extension, 70 degrees internal and 45 degrees external rotation
* post-laceration repair flexor digitorium profundus, flexor digitorium superficialis, and ulnar digital nerve to the right small finger with residual flexion contracture and loss of sensation over the ulnar half of the digit

6.  The MEB recommended his referral to a physical evaluation board (PEB).  He agreed with the MEB's findings and recommendation and indicated he did not desire to continue serving on active duty.

7.  On 31 August 1990, an informal PEB convened in San Francisco, CA.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and MOS and determined that he was physically unfit due to a status post-February 1990 repair (major) shoulder recurrent subluxation with residual degenerative arthritis and limitation of motion (abduction 100 degrees and flexion 80 degrees).  He was rated under the VA Schedule for Rating Disabilities (VASRD), assigned code 5201, and granted a 20-percent disability rating.  The PEB recommended the applicant's separation with entitlement to severance pay if otherwise qualified.  Diagnosis number 2 was found to be not unfitting.

8.  On 4 September 1990, the applicant was counseled by a PEB Liaison Officer regarding his medical condition, the findings of the MEB, the PEB process, and his rights under the law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

9.  He was honorably discharged on 12 December 1990 by reason of physical disability with entitlement to severance pay under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(3).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 6 months, and 27 days of active service.

10.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages:  the MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either discharged from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are discharged receive a one-time severance payment while veterans who are retired based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees.

	d.  The mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

11.  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 office, grade, rank, or rating.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

12.  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 percent to 100 percent, rising in increments of 10 percent.

13.  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 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 of less than 30 percent.

14.  The VASRD is used by the Army and the VA as part of the process for adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained a shoulder injury that warranted his entry into the PDES.  He underwent an MEB which recommended his referral to a PEB.  The PEB found his medical condition prevented him from reasonably performing the duties required of his grade and MOS.  He was determined to be physically unfit for further military service.  The PEB recommended his separation with entitlement to severance pay with a 20-percent disability rating.  The applicant agreed with the findings and recommendations and waived his right to a formal hearing of his case.

2.  The rating was assigned based on a finding that at the time of his separation; his medical examination revealed his ROM at 100 degrees abduction, 80 degrees flexion, 80 degrees extension, and 70 degrees internal and 45 degrees external rotation.  According to the VASRD, such finding warranted a 20-percent disability rating.

3.  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 20 percent for his shoulder condition.  There is no evidence to support a higher rating for this condition or any other medical condition.  Additionally, there is no evidence that he suffered a left shoulder injury or that such injury rendered him physically unable to perform his duties or that his left little finger injury rendered him unable to perform his duties.

4.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated him at 20-percent disabled for his condition.  There is no evidence that he should have been awarded a higher rating.  Since this rating was less than 30 percent, by law he was only entitled to severance pay.

5.  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 does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, there is insufficient evidence to grant 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 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)                                         AR20120005166



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ABCMR Record of Proceedings (cont)                                         AR20120005166



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