BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130008968 


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, that:

	a.  her last name be changed on her military records; and

	b.  her disability rating be increased from 80% to 100%.   

2.  The applicant states she:

* wants her last name changed to Fxxxx from FxxxxRxxx
* is currently a 100% disabled veteran
* was awarded 80% from the Army 
* is also unemployable with health issues which were not considered
* wants her mental disability evaluation changed from temporary to permanent
* is continuing treatment for post-traumatic stress disorder (PTSD) and an anxiety disorder

3.  The applicant provides:

* Letter, dated 2013, from the U.S. Army Physical Disability Agency
* Clerk's Certificate
* Judgment of Absolute Divorce



CONSIDERATION OF EVIDENCE:

1.  Having prior inactive and active service in the U.S. Army Reserve, the applicant was appointed as a captain in the Army National Guard (ARNG) on 
7 January 1993.  She entered active duty on 1 February 2001.  She was promoted to lieutenant colonel on 14 September 2001.    

2.  In 2011, a Medical Evaluation Board (MEB) diagnosed her with the following conditions that were deemed to be medically unacceptable:

* PTSD
* mood disorder
* osteoporosis
* peripheral neuropathy 

3.  The MEB found the following conditions medically acceptable:

* cerebrovascular accident
* migraine headache
* lumbar spondylosis
* cervical spondylosis
* bilateral chondromalacia patella
* left, ankle ligament injury
* right, ankle chrondromalacia
* right, wrist fracture
* left, distal radius fracture
* right, radial head fracture
* bilateral, hand arthritis
* bilateral hammertoes
* mitral valve prolapse
* tricuspid valve prolapse
* hypertension
* allergic rhinitis
* peptic ulcer disease
* esophageal ulcer
* bilateral, cataracts
* dry eye syndrome
* vitreous floaters
* left, tempromandibular joint degeneration
* deviated nasal septum
* right, hip strain

4.  Item 30 (Continuation) of the applicant's DA Form 3947 (MEB Proceedings) states:

	a.  "In regard to issues relating to fitness for duty and disability compensation, I understand that the PEB will consider and review only those conditions listed on the DA Form 3947."

	b.  "The DA Form 3947 includes all my current medical conditions and whether or not they meet medical retention standards."

	c.  "I agree that this MEB accurately covers all my current medical conditions." 

5.  The MEB recommended referral to a Physical Evaluation Board (PEB).  On 27 June 2011, the applicant did not agree with the findings and recommendations and submitted an appeal.  The appeal was considered and the report of the board was returned for reconsideration.  

6.  On 2 February 2012, a PEB found her physically unfit due to:

* PTSD
* mild right upper extremity peripheral neuropathy
* mild left upper extremity peripheral neuropathy
* mild right lower extremity peripheral neuropathy
* mild left lower extremity peripheral neuropathy
* osteoporosis

7.  The PEB determined the MEB’s medically acceptable conditions listed above met medical retention standards.  

8.  The disability description of the applicant's DA Form 199 (PEB Proceedings) states:

	a.  her medical condition prevents satisfactory performance of duty in her grade and specialty.

	b.  this condition has not stabilized to the point that a permanent degree of severity can be determined and she will be placed on the Temporary Disability Retired List (TDRL).

	c.  while on the TDRL she will be scheduled for periodic medical reexaminations and reevaluations.  

9.  The PEB recommended a combined 80% disability rating and placement on the TDRL.  On 17 February 2012, she concurred with the PEB findings and waived her right to a formal hearing.  

10.  On 23 February 2012, the U.S. Army Physical Disability Agency approved the PEB's findings.

11.  Orders, dated 6 March 2012, show she was placed on the TDRL effective 
24 May 2012.  These orders show her last name as Fxxxx.

12.  On 23 May 2012, she was retired and placed on the TDRL the following day.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 May 2012 shows her last name as Fxxxx.

13.  On 23 May 2012, she was honorably discharged from the ARNG and transferred to the Retired Reserve.  Her National Guard Bureau (NGB)
Form 22 (Report of Separation and Record of Service) shows the last name Fxxxx. 

14.  Since the applicant's military records show her last name as Fxxxx, this portion of her request will not be discussed further in these proceedings.

15.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

16.  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.  

17.  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.  It states that, after establishing the fact that a Soldier is unfit because of physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability.  Percentage ratings reflect the severity of the Soldier's medical condition at the time of rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant now wants her disability percentage corrected/increased.  However, she concurred with the PEB findings in February 2012.

2.  She contends she is unemployable with health issues that were not considered.  However, on 27 June 2011, she agreed that the MEB accurately listed all of her current medical conditions.

3.  She contends she wants her mental disability evaluation changed from temporary to permanent.  However, in 2012 she was placed on the TDRL because her medical condition had not stabilized to the point that a permanent degree of severity could be determined.  While she is on the TDRL she will be scheduled for periodic medical reexaminations and reevaluations.  

4.  There is insufficient evidence to show her unfitting conditions were improperly rated by the PEB in 2012.  Therefore, there is no basis for granting the applicant's request to increase her 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)                                         AR20130008968



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ABCMR Record of Proceedings (cont)                                         AR20130008968



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