IN THE CASE OF:	  

		BOARD DATE:  13 March 2014

		DOCKET NUMBER:  AR20130011937 


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 the 1986 formal temporary disability retired list (TDRL) physical evaluation board (PEB) finding and recommendations to show he was assigned a 30-percent (%) vice 20% disability rating.  

2.  The applicant states in the 1986 there were fundamental and serious errors made by the PEB including serious false allegations and misrepresentations of facts by a member of the board.  The PEB failed to properly review and understand the record of the first PEB that was held in 1984 and placed him on the TDRL at a disability rating of 30%.  The error was also caused by insufficiency of counsel since it is clear from the record of the 1986 PEB that counsel had not examined the 1984 PEB record and only spent 20 minutes with him before the formal PEB hearing.  

3.  The applicant provides the 1984 and 1986 formal proceedings.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records by restoring his 30% disability rating.  

2.  Counsel states that improper conduct by the 1986 final PEB prejudiced the applicant's case and resulted in a denial of due process, fundamental fairness and justice, and an improper final disability rating.  

3.  He also states that insufficiency of counsel at the 1986 final PEB resulted in a denial of proper due process, fundamental fairness and justice for the applicant, and an improper final disability rating.

4.  Counsel does not provide any evidence. 

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.  Having had prior service, the applicant reenlisted in the Regular Army on 23 March 1978.  He held military occupational specialties 19D (Cavalry Scout) and 62B (Construction Equipment Repairer). 

3.  He served through multiple reenlistments in a variety of stateside or overseas assignments, including Germany, from July 1978 to July 1981, and he attained the rank/grade of sergeant (SGT)/E-5. 

4.  In February 1981, he sustained a comminuted fracture of the right patella while stationed in Germany after being involved in an accident.  He had an open reduction and internal fixation in a German hospital.  The distal pole of the right patella was removed and the patella tendon was reattached to the proximal pole. He was fixed with a tension band wire technique.  He experienced post-operative bilateral knee pain, right greater than the left.  

5.  In the interest of understanding his physical conditions the following definitions are made: 

* Chondromalacia patella is an inflammation of the underside of the patella and the softening of the cartridge
* Duodenitis is inflammation of the duodenum (first section of the small intestine)
* Esophagogastroduodenoscopy is a test to examine the lining of the esophagus

6.  On 4 November 1983, a medical evaluation board (MEB) convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the conditions below.  

* Status post fracture, right patella, internally fixed with cerclage wire
* Chondromalacia patella, secondary to above diagnosis manifested by pain on ambulation

7.  The MEB recommended his referral to a PEB.  He agreed with the MEB's findings and recommendations and indicated he did not desire to continue on active duty.

8.  On 6 January 1984, an informal PEB convened and found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to chondromalacia of right patella and Duodenitis (Esophagogastroduodenoscopy report of 9 December 1983).  Furthermore: 

	a.  The PEB rated him under the Veterans Administration Schedule for Rating Disabilities (VASRD) codes 5010/5003 (Chondromalacia) at 10% and codes 7399/7707 (Duodenitis) at 10%.  The PEB recommended a combined disability rating of 20% and the applicant be separated from the service with entitlement to severance pay if otherwise qualified. 

	b.  The PEB stated that although some change in his medical condition may be anticipated, for administrative adjudication purposes the disability was considered to have stabilized at the degree of severity above.

	c.  Throughout the disability process, he appears to have been counseled by a PEB Liaison Officer (PEBLO) and informed of his rights at each step of the process.  Subsequent to this counseling, on 11 January 1984, the applicant did not concur with the PEB's finding and recommendation and elected a formal hearing and appointment of counsel. 

9.  On 9 February 1984, a formal PEB convened and again found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to post-traumatic chondromalacia of both knees, rated on the basis of right knee impairment accompanied by subjective low back pain and Duodenitis 

(Esophagogastroduodenoscopy report of 9 December 1983).  The formal PEB: 

	a.  Rated his conditions under VASRD code 5257 for post-traumatic Chondromalacia at the rate of 20% and codes 7399/7707 for Duodenitis at the rate of 10%.  

	b.  Recommended a combined disability rating of 30% and placement on the TDRL with reexamination in July 1985.  

10.  On 9 February 1984, he was counseled and agreed with the recommended findings. 

11.  On 19 March 1984, the U.S. Army Military Personnel Center, Alexandria, VA, published Orders D53-90 retiring him on 2 April 1984 and placing him on the TDRL in the rank of SGT on 3 April 1984 with a 30% disability rating.  

12.  He was honorably retired on 2 April 1984 under the provisions Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(2), by reason of temporary disability, and on 3 April 1984, he was placed on the TDRL.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed a total of 9 years, 5 months, and 5 days of active service. 

13.  On 17 July 1985, he underwent a TDRL examination.  His narrative summary shows: 

	a.  He had an MEB in 1983 and he was determined to be disabled because of chronic Chondromalacia and Duodenitis.  He reports occasional episodes of burning discomfort radiating from his epigastrium to the chest, that usually only bother him if he gets upset.  He occasionally awakes at night with these symptoms, but most episodes occur in the evening prior to going to bed.  Current medications include Mylanta as needed and Tylenol for his orthopedic problems. He also takes Carafate but he was currently out of this medication.

	b.  He reports an 8-pound weight gain since being placed in a disability status. On physical examination, he was noted to be mildly obese; his oropharynx was clear with no nodes and his lungs were also clear; he had regular rate and rhythm without murmur; his abdomen is flat, nontender, and there is no organomegaly.  Additionally, the esophagogastroduodenoscopy reveals minimal erythema of the distal esophagus, about 2 centimeters above the lower esophageal sphincter.  There are three small patches of erythema around the pylorus with a 1 to 2 mm diameter; and a punctate ulcer in the midst of one of these erosions.  There is erythema and hypertrophy of the folds in the duodenal bulb, but no ulceration is seen.  He has normal mucosa distal to the duodenal bulb.  The impression is that of minimal Duodenitis, stable, asymptomatic.  His present condition is stable on minimal therapy, and considered not rateable for further disability compensation.

	c.  His physical examination is entirely within normal limits except for his extremity exam and his back exam.  His back reveals a full range of motion with difficulty in forward flexion with fingers to mid-calf; this is also true with the patient in the sitting position in a chair, consistent with subjective overlay.  Examination of his motor shows 5/5 strength in his anterior rib, extensor digitorium longus, his peroneal muscles, his gastrocsoleus, quads, hamstrings, adductors, flexors and abdactors of the hip.  His pinprick and light touch are within normal limits and his reflexes are 2+ and equal bilaterally in both his L4 and S1 reflexes.  An examination of his knees shows full range of motion of both knees equal bilaterally.  He does have a 3/4th inch atrophy on the right side with some decreased tone in the vastus medialis.  The patient has no evidence of ligamentous laxity.  He has a well-healed transverse surgical incision.  He has bilateral positive compression test, actually the left is greater than the right.  There is minimal crepitance with range of motion.  The remainder of his examination is normal except for some mild irregularity under surface of right patella.  

	d.  X-rays revealed a well-healed fracture of the patella with evidence of cerclage wire on the right side.  There is no evidence of medial, lateral or patellofemoral compartment changes.  His diagnosis was that of fracture of right patella, healed; no residual impairment and low back pain without any objective physical findings.  It is recommended that he be evaluated by Gastroenterology for termination of retention on TDRL status.  He is presented to the PEB for final disposition.

14.  On 12 March 1986, an informal TDRL PEB convened and found the applicant remained medically unfit for post-traumatic Chondromalacia of both knees, rated on the basis of right knee impairment accompanied by subjective low back pain and mild Duodenitis.  

	a.  The PEB rated him under VASRD code 5257 (post-traumatic Chondromalacia) at 20% and code 7399 (Duodenitis, mild, asymptomaic) at 0%. The PEB recommended a combined disability rating of 20% and separation with entitlement to severance pay if otherwise qualified. 



	b.  The PEB noted that his 20% rating more accurately reflects the degree of severity of the applicant's condition.  The PEB considers his condition to have stabilized sufficiently for rating purposes and the proper disposition to be separation with severance pay. 

15.  On 20 March 1986, the applicant indicated he did not concur with the TDRL PEB's findings and recommendations.  He demanded a formal hearing of his case with personal appearance and representation by appointed counsel.  

16.  On 14 April 1986, a formal TDRL PEB convened and based on a review of the medical evidence of record, presentation by counsel, and the applicant's testimony, the PEB again found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined that he remained physically unfit.  The PEB rated him as follows:

* VASRD code 5257, post-traumatic Chondromalacia of both knees, right greater than left, rated on the basis of right knee impairment at 20%
* VASRD codes 7399/7307, mild and asymptomatic Duodenitis) at 0%
* VASRD code 5295, low back pain without objective findings 0%

17.  The formal TDRL PEB noted that his 20% rating more accurately reflects the degree of severity of the applicant's condition.  The PEB considers his condition to have stabilized sufficiently for rating purposes and the proper disposition to be separation with severance pay.

18.  On 2 May 1986, the U.S. Army Physical Evaluation Board, Washington, DC, provided the applicant a copy of the proceedings of his recent hearing and requested he reply with his election (agreement, disagreement and rebuttal, signature, and date).  He failed to respond. 

19.  On 5 June 1986, by letter, the TDRL PEB Board Recorded notified the U.S. Army Physical Evaluation Board that the applicant failed to make an election.  Every reasonable effort was made to obtain his response to no avail.  In the absence of his response, it is presumed he agreed with the TDRL PEB's findings and recommendation.  His case is forwarded for final disposition.  

20.  On 26 June 1986, the U.S. Military Personnel Center, Alexandria, VA, published Orders D119-5 removing him from the TDRL and discharging him from the Army with a 20% disability rating, effective 10 July 1986. 

21.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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 or her 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 that 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.

22.  Army Regulation 40-501 (Standards of Medical Fitness) 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% to 100%, rising in increments of 10%.

23.  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%.  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%.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was involved in an accident and he sustained physical injuries that warranted his entrance into the PDES.  He underwent an MEB which recommended his referral to a PEB.  He agreed with the MEB's findings and recommendations and indicated he did not desire to continue on active duty.  The informal PEB found his medical conditions prevented him from reasonably performing the duties required of her grade and military specialty.

2.  A formal PEB reconsidered his conditions and determined he was physically unfit for further military service.  The PEB rated his Chondromalacia of right patella and Duodenitis conditions and recommended a 30% disability rating.  He agreed with the findings and recommendation.  He was placed on the TDRL in April 1984.  

3.  In August 1985, he underwent a TDRL examination.  His diagnosis was that of fracture of right patella, healed; no residual impairment and low back pain without any objective physical findings.  The informal TDRL PEB rated his conditions at 20% and recommended his separation with entitlement to severance pay.  He did not concur.  


4.  A subsequent formal TDRL PEB reconsidered his conditions.  Based on a review of the medical evidence of record, presentation by counsel, and the applicant's testimony, the PEB again found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined that he remained physically unfit.  The PEB rated his Chondromalacia of right patella and Duodenitis conditions and recommended a 20% disability rating with separation and entitlement to severance pay. 

5.  He was advised of this finding and his rights, and he was given the opportunity to concur or submit a rebuttal; however, he failed to respond to the TDRL PEB's findings and recommendation.  Accordingly, he was removed from the TDRL and discharged in July 1986. 

6.  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 initially rated at 30% and later rated at 20%.  He provides no medical evidence, 30 years later, to support a higher rating for any condition.

7.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated his conditions initially at 30% disabling.  At the time, there was no finding of an unfitting condition related to his back.  During the formal TDRL condition:

* the Chondromalacia of right patella remained unfitting and remained at a 20% rating
* the Duodenitis, mild and asymptomatic was minimal and stable; it was rated at 0%
* the back pain was never found unfitting during his PDES process; it was listed; however, without any objective physical findings; it was rated at 0% 

8.  Subsequent to the TDRL examination, informal TDRL PEB, and formal TDRL PEB, his final rating was 20%.  Again, neither he nor his counsel provided medical evidence then nor do they now provide any to support a higher rating.  Since this rating was less than 30%, by law he was only entitled to severance pay.

9.  It is unclear how the applicant was denied due process.  The evidence shows his physical disability evaluation was conducted in accordance with law and regulations and the applicant exercised his rights and options with respect to demanding a formal hearing of his case, representation by counsel, and the submission of any medical evidence.  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 her case.

10.  It is equally unclear how his current counsel determined that legal counseling at the time was inadequate.  If the applicant felt his appointed counsel did not live up to his expectations, he had the option of having counsel of his choice at no expense to the Government.  He did not exercise that option then but he now feels, some 30 years after his discharge, that his counsel was inadequate.  

11.  After a comprehensive review of the evidence of record and the argument provided by the applicant and his counsel, there is 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)                                         AR20130011937



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130011937



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1