BOARD DATE:	  2 May 2013

		DOCKET NUMBER:  AR20120016630 


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 of the disability rating assigned by the Physical Evaluation Board (PEB).  

2.  The applicant states he had service connected medical conditions that included an anterior cruciate ligament (ACL) repair/reconstruction, carpal tunnel syndrome, and instability in both ankles and feet which were not evaluated by the PEB.  

3.  The applicant provides the documents identified in item 9 (In support of this application, I submit as evidence the following attached documents) of his application in support of his request.  

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 11 July 1989.  He was trained in and awarded military occupational specialty 63D (Field Artillery Systems Mechanic).  He was promoted to sergeant/E-5 on 1 November 1998, and this is the highest rank he attained while serving on active duty.

3.  The Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File, is void of any documents related to the applicant's processing through the Physical Disability Evaluation System (PDES) or medical treatment records.  

4.  The record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows the applicant was honorably discharged on 12 August 2003 under the provisions of paragraph 4-24b(3), Army Regulation 635-40 (PDES), by reason of disability with severance pay.  It also shows at the time he had completed a total of 14 years, 1 month, and 2 days of active military service, and that he received $54,799.00 in severance pay.  

5.  The applicant provides page 1 of a DA Form 199 (PEB Proceedings) which shows his case was evaluated by a PEB on 9 July 2003 at Fort Sam Houston, Texas.  The PEB found the applicant was unfit for further service based on chronic low back pain due to degenerative disc disease and assigned a disability rating of 10 percent (%) under Veterans Affairs Schedule of Rating Disabilities (VASRD) codes 5299/5295.  The PEB recommended the applicant's separation with severance pay.  

6.  The applicant provides a medical record report, dated 24 January 1994, which shows he received surgery for an ACL deficiency in the left knee.  The record shows shortly after surgery the applicant left the operating room in good condition and he tolerated the procedure well.  He also provides DA Forms 
5181-R (Screening Note of Acute Medical Care), dated 28 July 1995, which shows he was treated for wrist pain on that date and one dated 23 January 1996, which shows he was treated for knee and back pain on that date.  In addition, he provides DA Forms 5181-R which show he was treated for shoulder, elbow, wrist and hand pain on an unknown date and for wrist pain on 3 December 2000.  The notes indicate overuse was the cause and medication was prescribed.  

7.  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/her office, grade, rank, or rating.  It states that in each case it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  The regulation stipulates that the disposition of members determined to be unfit for further service with less than 20 years of service who are assigned a disability rating of less than 30 percent will be separation with severance pay.

8.  Paragraph 3-5 of the disability regulation contains guidance on rating disabilities.  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.  The percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  Under the provisions of Title 10, U.S. Code, chapter 61, these ratings are assigned from the VASRD. 

9.  The VASRD rating guidance for code 5299/5295 applies to lumbosacral stain and provides for a 10 percent disability rating when the area shows “characteristic pain on motion.”  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for correction of his disability rating has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  In the absence of evidence to the contrary it is presumed the applicant’s separation from active duty complied with applicable laws and policies.  The evidence of record indicates the applicant was properly processed through the PDES and provided a disability rating based on the unfitting condition (chronic low back pain due to degenerative disc disease) identified by the PEB.  

3.  The evidence of record and the independent evidence provided by the applicant fail to show the medical conditions now raised by the applicant were unfitting at the time of his PEB processing.  Further, although the DA Form 199 is not on file in the AMHRR and the applicant only provided the first page of the document, it is presumed he concurred with the findings and recommendations at the time.  

4.  Further, there is no indication the applicant indicated the conditions he now raises were active or contributed to him being unfit for further service at the time of his processing through the PDES.  

5.  Absent medical evidence showing the applicant's ACL, ankle and feet instability, and carpal tunnel syndrome conditions were unfitting at the time of his PDES processing, or evidence of an error in his PDES processing, there is an insufficient evidentiary basis to support a change to his disability rating. 

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)                                         AR20120016630



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ABCMR Record of Proceedings (cont)                                         AR20120016630



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