BOARD DATE:	  30 January 2014

		DOCKET NUMBER:  AR20130008736 


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 records to show he was rated with a higher percentage of disability and placed on the permanent disability retired list.

2.  The applicant states he was unable to return to active duty due to a disability rating of 60%.  The Department of Veterans Affairs (VA) rated him for a service-connected permanent disability and, therefore, he should be medically retired.

3.  The applicant provides copies of documents related to his temporary disability retired list (TDRL) processing.

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 had prior honorable active duty enlisted service in the Army National Guard from 31 October 1983 through 17 February 1984.  He was awarded military occupational specialty 11C (Indirect Fire Infantryman).

3.  The applicant enlisted in the Regular Army (RA) on 28 February 1986 for a period of 3 years. 

4.  On 2 March 1989, a Medical Evaluation Board (MEB) was conducted at General Leonard Wood Army Community Hospital, Fort Leonard Wood, MO.

	a.  The MEB proceedings show the applicant was diagnosed with:

* left femur fracture, comminuted, closed, healing, status post intramedullary nailing
* right tibia fracture and fibular fracture, status post intramedullary nailing, healing

   b.  The MEB determined that the applicant did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  The findings and recommendation of the board were approved, the applicant agreed with the board's findings and recommendations, and his case was referred to the Physical Evaluation Board (PEB).

5.  On 2 March 1989, the applicant was issued a permanent profile for left femur fracture and right tibia fracture.

6.  On 10 March 1989, a PEB was conducted at Fort Sam Houston, TX.

	a.  The PEB proceedings show the applicant was diagnosed with impairment of both lower extremities (60%), as follows:

* left lower extremity impairment status post left femur fracture, comminuted, closed, intramedullary nailing, healing; rated as marked disability
* right lower extremity impairment status post right tibia and fibular fracture, intramedullary nailing, healing; rated as marked disability

   b.  The PEB found that the applicant's (then) current condition was not sufficiently stable for final adjudication and recommended he be placed on the TDRL with reexamination.
   
   c.  On 14 March 1989, the applicant indicated with his initials and signature that he concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

7.  U.S. Total Army Personnel Command, Alexandria, VA, Orders D153-37, dated 9 August 1989, relieved the applicant from assignment on 30 August 1989 and placed him on the TDRL, effective 31 August 1989, in the retired grade of private first class (E-3) with a 60% disability rating.

8.  The applicant's DD Form 214 shows he was honorably retired on 30 August 1989 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(2), based on physical disability:  temporary.  He completed 3 years, 6 months, and 3 days of net active service this period; 3 months and 17 days of total prior active service; and
2 years, 1 month, and 4 days of total prior inactive service.

9.  On 12 March 1991, based on a periodic physical examination approved on 
11 March 1991, the applicant was notified his case was being referred to a PEB.

10.  On 15 April 1991, a PEB was conducted at Fort Sam Houston, TX.

	a.  The PEB proceedings show the applicant was diagnosed with pain on ambulation secondary to healed right tibia fracture, left femur fracture with retained rod, and left knee crepitus; rated as analogous to degenerative joint disease of two major joints.

   b.  Based on review of the TDRL examination, the PEB found that the applicant remained unfit to reasonably perform the duties required by his previous grade and military specialty.  It also found his condition was considered sufficiently stable for final adjudication.

   c.  Accordingly, the PEB found the applicant physically unfit.  It recommended a combined rating of 20% and separation with severance pay.

   d.  On 25 April 1991, the applicant indicated with a checkmark and his signature that he concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

   e.  The PEB proceedings were approved for the Secretary of the Army on 
30 April 1991.


11.  U.S. Total Army Personnel Command, Alexandria, VA, Orders D87-10, dated 7 May 1991, removed the applicant from the TDRL and discharged him from the service, effective 7 May 1991, with a 20% disability rating and severance pay.

12.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  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 in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

   a.  Chapter 3 (Policies), paragraph 3-9, instructs that the TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.

    	(1)  Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.

    	(2)  The disability must be rated at a minimum of 30% or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208.  In addition, the condition must be determined to be temporary or unstable.

   b.  Chapter 7 (TDRL) provides in:

    	(1)  paragraph 7-4 that a Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired; and

    	(2)  paragraph 7-7 that medical examiners and adjudicative bodies will carefully evaluate each case.  They will recommend removal of the Soldier's name from the TDRL as soon as the Soldier's condition permits.

   c.  Chapter 4 (Procedures), paragraph 4-24 (Disposition by the U.S. Army Physical Disability Agency (USAPDA)), provides that the USAPDA will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters.
13.  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%.

14.  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 error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different disability ratings based on the same impairments.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA (and some other government agencies) may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his military records should be corrected to show he was discharged with a higher percentage of disability and placed on the permanent disability retired list was carefully considered.

2.  The evidence of record shows a PEB was conducted on 10 March 1989.  The PEB found the applicant physically unfit based upon impairment of both lower extremities.  He was awarded a total combined rating of 60% and placed on the TDRL, effective 31 August 1989, pending further reexamination.

3.  The evidence of record also shows that, based on a periodic physical examination, a PEB was conducted on 15 April 1991.  The PEB found the applicant physically unfit due to pain on ambulation secondary to healed right tibia fracture, left femur fracture with retained rod, and left knee crepitus; rated as analogous to degenerative joint disease of two major joints.  It also found his condition was considered sufficiently stable for final adjudication and the PEB recommended a combined rating of 20% and separation with severance pay.
   a.  The applicant concurred with the findings and recommendations of the PEB on 25 April 1991.

   b.  The PEB proceedings were approved on 30 April 1991.  Accordingly, the applicant was removed from the TDRL and discharged from service, effective 
7 May 1991, with a 20% disability rating and severance pay.

4.  The evidence of record shows the applicant's case was thoroughly reviewed and carefully considered throughout the physical disability evaluation process.  The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  Therefore, the applicant's PEB proceedings are considered proper and equitable and he is not entitled to a higher disability rating.

5.  Therefore, in view of the foregoing, there is an insufficient evidentiary 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 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)                                         AR20130008736



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ABCMR Record of Proceedings (cont)                                         AR20130008736



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