IN THE CASE OF:	   

		BOARD DATE:	  11 September 2014

		DOCKET NUMBER:  AR20130022069 


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 his discharge be voided and that he instead be medically retired by reason of permanent disability.  

2.  The applicant states, in effect, that he was not properly evaluated by either his Medical Evaluation Board (MEB) or Physical Evaluation Boards (PEB), as they evaluated him as a military intelligence (MI) officer when he was in fact an infantry officer, and they did not have all of the relevant medical documents when they incorrectly determined he was fit for duty.  He should have been placed on the Temporary Disability Retired List (TDRL) and subsequently permanently retired by reason of permanent disability.  

3.  The applicant provides copies of his MEB and PEB proceedings, personnel records, and medical treatment records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's discharge be voided and that he be retired by reason of permanent disability.

2.  Counsel states, in effect, that given the numerous errors that occurred in the disability processing of the applicant as a military intelligence officer instead of as an infantry officer a new evaluation should have been initiated under the Physical Disability Evaluation System (PDES) and the applicant should have been retired by reason of permanent disability. 

3.  Counsel provides a 33-page brief explaining the applicant’s application.

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 and served as a military policeman from November 1992 until he was honorably released from active duty in November 1996.  He served an overseas short tour at Johnston Island and deployed to Southwest Asia during the period 30 October through 12 December 1994.

3.  On 15 December 2001, he was commissioned as an infantry second lieutenant in the U.S. Army Reserve with a concurrent call to active duty.  He was transferred to Fort Benning, Georgia, where he completed the Infantry Officer Basic Course and was awarded area of concentration (AOC) 11A.  He was assigned a basic branch of Infantry and a control branch of Military Intelligence.  He was transferred to Fort Hood, Texas for assignment to a mechanized infantry company and was deployed to Iraq.

4.  A review of his officer evaluation reports (OERs) shows that his OERs vary during rating periods -- in some reports he was rated as an infantry officer (11A) and in some he was rated as an MI officer (35D).  He performed duties as an Assistant S-2, Assistant S-3, Infantry platoon leader, and Assistant Professor of Military Science.  He was promoted to the rank of captain on 1 April 2005.

5.  On 31 March 2008, an MEB convened at Fort Hood to evaluate his diagnosed conditions of chronic post-traumatic stress disorder (PTSD), lumbar degenerative disc disease with facet arthrosis, left anterior knee pain, sensorineural hearing loss, right knee status post anterior cruciate ligament reconstruction, allergic rhinitis, and heartburn.  The MEB evaluated the applicant as an MI officer in AOC 35B and found that his conditions of chronic PTSD, lumbar degenerative disc disease with facet arthrosis, and left anterior knee pain were unacceptable and that the remaining conditions were acceptable.  The MEB recommended that he be referred to a PEB.  The applicant indicated that he did not desire to remain on active duty and concurred with the findings and recommendations of the MEB.

6.  On 1 April 2008, the applicant was issued a temporary profile of “113213.”

7.  On 8 May 2008, a PEB convened at Fort Sam Houston, Texas that found him fit for duty.  The applicant did not concur with the findings and recommendations of the PEB and requested a formal hearing.

8.  On 27 June 2008, a formal PEB convened at Fort Sam Houston and the applicant elected to appear with counsel.  After reevaluating all available medical records and the applicant’s testimony, the PEB again concluded that he was fit for duty.  The PEB was approved on 1 July 2008.

9.  On 31 December 2008, the applicant was honorably discharged under the provisions of Army Regulation 600-8-24, paragraph 3-5, due to miscellaneous/ general reasons.  He had served a total of 11 years and 6 days of active service.

10.  In the processing of this case a staff advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA), which opined that the applicant’s records should be changed to reflect that he was found unfit for PTSD, lumbar disease, and knee pain.  Officials at the USAPDA indicated that the best evidence in 2008 indicated that his PTSD would be rated at 30%, with a temporary rating of 50% in accordance with Veterans Affairs Schedule for Rating Disabilities (VASRD), 38 CFR Part 4, 4.129; the lumbar disease rated at 10%; and the knee rated at 10%.  Total ratings would be 50% + 10% -- 55% + 10% = 60% with placement on the TDRL.  Officials at the USAPDA recommend that he be placed on the TDRL 90 days from 27 June 2008 (date of formal PEB) which would be 23 September 2008, and that he be removed from the TDRL on 1 April 2009 with a permanent disability rating of 60%.  The advisory opinion was provided to the applicant for comment and he concurred with the opinion as written.

11.  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.

12.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted and found to have merit.  The available evidence suggests that all of the available evidence in this case was not provided or was not available at the time he was evaluated by the PEB.

2.  Therefore, given the opinion of the USAPDA after an evaluation of the applicant’s case, it appears it would be in the interest of justice to void his 31 December 2008 discharge and show he was retired by reason of temporary disability under the provisions of Army Regulation 635-40, with a 30% disability rating (temporary rating of 50%) effective 23 September 2008, and that he was removed from the TDRL effective 1 April 2009 and permanently retired by reason of permanent disability with a 60% disability rating, with entitlement to all back retired pay that flows from that change, less any funds already received.

3.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact her nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

BOARD VOTE:

___x____  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* voiding Orders 331-0116, dated 28 November 2008, showing he was discharged effective 31 December 2008
* issuing him new orders, effective 23 September 2008, showing he was retired due to temporary disability with a 30% disability rating (50% temporary disability) under the provisions of Army Regulation 635-40
* issuing him orders showing that he was removed from the TDRL effective    1 April 2009 and permanently retired with a 60% disability rating
* paying him all back retired pay that flows from this change less funds already received




      ___________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)                                         AR20130022069





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ABCMR Record of Proceedings (cont)                                         AR20130022069



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