BOARD DATE:	  7 August 2014

		DOCKET NUMBER:  AR20130022106 


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 he be allowed the opportunity to appeal the decision of the physical evaluation board (PEB) to separate him with entitlement to severance pay in 1991.  In effect, he requests a review of his disability processing.  

2.  The applicant states he never received any information on his right to appeal the October 1991 decision by the PEB. 

3.  The applicant 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.  The applicant enlisted in the Army National Guard (ARNG) on 12 September 1986.  He held military occupational specialty 31M (Multi-Channel Communication Systems Operator). 

3.  On 4 August 1988, while on active duty for training at Camp Blanding, FL, he was assisting a fellow Soldier who experienced a medical emergency and was awaiting medical air evacuation.  The Soldier was placed in a military vehicle in the road with the lights on awaiting evacuation and he was attended by the applicant when a second vehicle tried to go around and struck the open door pinning the applicant between the door and the cab.  The impact caused injury to his back and left side.  His injury was determined to be in line of duty by his unit commander.

4.  On 21 May 1990, a medical evaluation board (MEB) convened, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medical condition of somatoform pain disorder.  The MEB recommended return to duty.  The applicant did not agree and appealed the recommendation.  (The National Institute of Health defines somatoform disorders as mental illnesses that cause bodily symptoms, including pain; the symptoms can't be traced back to any physical cause and they are not the result of substance abuse or another mental illness.)

5.  On 14 June 1990, the applicant submitted an appeal of the findings and recommendations of the MEB.  

6.  On 25 June 1990, the appeal was considered.  The MEB confirmed the original findings.  By memorandum dated 2 July 1990, the applicant and his chain of command were informed of his fitness for duty without a profile or assignment limitations.  

7.  On 11 October 1990, a second MEB convened, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having somatoform pain disorder.  This MEB recommended his referral to a PEB.  He was counseled and agreed with this MEB's findings and recommendation.

8.  On 20 November 1990, an informal PEB convened and determined that based on a detailed review and consideration of all the evidence of record in his case, the PEB found him fit.  He was ordered returned to duty with no assignment restrictions or limitations.  It appears he did not concur and he elected a formal hearing of his case. 

9.  On 15 January 1991, he submitted a medical statement from a chiropractic that described him as totally disabled.   In addition, he provided as evidence during his appeal a Department of Veterans Affairs (VA) Rating Decision. 

10.  On 23 May 1991, his MEB was returned for inclusion of a consult for the somatization disorder.  Additionally, the applicant desired to add two new diagnoses which were not included in the original MEB: degenerative arthritis of the cervical and lumbar spine and generalized weakness.  The examining physician stated, “No change in the diagnosis as outlined in his Medical Evaluation Board of 11 October 1990.” 

11.  On 5 July 1991, by memorandum, the PEB President informed the applicant that the PEB considered an addendum, dated 23 May 1991.  However, after careful consideration, the PEB adhered to the informal findings on 20 November 1990.  Additionally, he was also informed since he elected a formal board his formal hearing would be held on 30 July 1991. 

12.  On 30 July 1991, a formal PEB convened and found the applicant's condition of somatoform pain disorder with neck, shoulder and pack pain prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit.

	a.  The PEB noted that his condition of somatoform pain disorder with neck, shoulder and pack pain with paresthesias in extremities originated with an injury on 4 August 1988 and 14 July 1990 without objective evidence of permanent physical impairment, rated as mild impairment of social and industrial adaptability. 

	b.  The PEB rated his condition under the VA Schedule for Rating Disabilities (VASRD) code 9505 and granted a 10-percent (%) disability rating.  The PEB recommended the applicant be separated with entitlement to severance pay if otherwise qualified.

13.  Throughout the disability process, he appears to have been counseled by a PEB Liaison Officer and informed of his rights at each step of the process.  Subsequent to this counseling, the applicant elected not to concur with the findings and recommendations of the PEB and demanded a formal hearing of his case.  

14.  On 14 August 1991, by letter, the PEB informed the applicant that they had received his rebuttal to the 30 July 1991 formal board proceedings on 12 August 1991.  Based on his rebuttal, the PEB again thoroughly reviewed his file.  However, the PEB adhered to its findings and recommendations that he should be separated with severance pay for a physical disability that was rated at 10%. 

15.  On 23 October 1991, another formal PEB convened and found the applicant's condition of somatoform pain disorder with neck, shoulder and pack pain prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit.  

	a.  The PEB noted that his condition of somatoform pain disorder with neck, shoulder and back pain with paresthesias in extremities originated with an injury on 4 August 1988 and 14 July 1990 without objective evidence of permanent physical impairment, rated as mild impairment of social and industrial adaptability. 

	b.  The PEB rated his condition under VASRD code 9505 and granted a 10% disability rating.  The PEB recommended the applicant be separated with entitlement to severance pay if otherwise qualified.

	c.  This PEB modified the previous PEB by adding the entry that his disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

16.  On 9 November 1991, after having been counseled and advised of his rights, the applicant concurred with the PEB's modified finding and recommendation.

17.  On 23 April 1992, he was honorably discharged from the ARNG under the provisions Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability.  The National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he completed 5 years, 7 months, and 12 days of inactive service during this period. 

18.  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.

19.  Army Regulation 40-501 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%.

20.  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%.

21.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant does not identify exactly what he is appealing or what he means by appealing.  Nor does he provide any medical documentation in support of his appeal.  It appears he is requesting a review of his disability processing.  

2.  The applicant sustained a medical condition that warranted his entrance into the PDES.  He underwent an MEB which found him physically fit and returned him to duty.  He did not agree with the MEB.  A second MEB convened and recommended his referral to a PEB.  The PEB found his medical condition prevented him from reasonably performing the duties required of his grade and military specialty. 

3.  The PEB determined he was physically unfit for further military service.  The PEB rated his unfitting condition at 10%.  He did not concur and elected a formal hearing of his case.  The PEB reconvened and reached the same conclusion but modified its finding regarding the instrument that caused the injury.  The applicant ultimately agreed with the PEB's findings and recommendation.

4.  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 rated at 10% and there is no evidence to support a different rating for his condition.

5.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated his condition 10% disabling.  There is no evidence that he should have been awarded a different rating.  Since this rating was less than 30%, by law he was only entitled to severance pay.

6.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  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 his case.

7.  In view of foregoing, 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)                                         AR20130022106



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ABCMR Record of Proceedings (cont)                                         AR20130022106



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