IN THE CASE OF:  

		BOARD DATE:  1 September 2015	  

		DOCKET NUMBER:  AR20140011636 


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 medically retired.

2.  The applicant states that he was released from active duty on 11 February 2009 and placed on the Temporary Disability Retired List (TDRL).  He states that his medical conditions were supposed to be reviewed every 18 months. However, he had only one review that resulted in him being medically discharged with severance pay on 23 January 2014.

3.  The applicant provides a copy of his TDRL exam, dated 16 December 2013.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted and entered active duty in the Regular Army on
9 August 2006.  He was awarded military occupational specialty 42A (Human Resources Specialist).

2.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows an informal PEB convened on 3 December 2008 at Fort Lewis, WA.  

   a.  The following conditions (identified by VA Schedule for Rating Disabilities (VASRD) codes) were determined to be unfitting:

* 5099 & 5003 – bilateral knee pain from chondromalacia patella evaluated as arthritis, degenerative (right knee, 20%; left knee, 10%) – 20%
* 5200 & 5237 – mechanical low back pain evaluated as lumbar strain –
10%
   
   b.  The PEB recommended a combined rating of 30% and that the applicant be placed on the TDRL with reexamination during July 2010.

   c.  The PEB Alternate President signed the PEB proceedings.

   d.  On 4 December 2008, the PEB Liaison Officer (PEBLO) confirmed that the applicant was fully briefed on the findings and recommendations of the PEB, and also on his legal rights pertaining thereto.

   e.  The applicant concurred, waived a formal hearing of his case, and placed his signature on the document.
   
   f.  On 15 December 2008, the PEB proceedings were approved for the Secretary of the Army (SA).

3.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably separated from active duty on 11 February 2009 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), based on disability (temporary).  He had completed 2 years, 6 months, and 3 days net active service this period.

4.  A review of the applicant's military personnel records failed to reveal any additional PEB proceedings or separation orders.

5.  In support of his application the applicant provides a copy of a TDRL final examination, dated 16 December 2013, completed by M___ K. Z____, Master of Science in Nursing, Family Nurse Practitioner – Board Certified, Irwin Army Community Hospital, Fort Riley, KS, that shows, in pertinent part:

* the original TDRL determination:

* bilateral knee pain from chondromalacia patella evaluated as arthritis, degenerative – 20%
* mechanical low back pain evaluated as lumbar strain – 10%

* TDRL Diagnosis Number 1, Mechanical Low Back Pain evaluated as Lumbar Strain.

* Prognosis:  "Condition has been stable and is very poor for recovery based on the Soldier's continued pain, sedentary lifestyle, and weight, even though his radiology imaging is abnormal I do suspect the condition would improve if he would make lifestyle modifications in adjunct with weight loss and potentially with physical therapy.  I am doubtful this will occur as this is the fifth year the Solder has been on the TDRL.  He entered into the Army in 2006, was placed on the TDRL in 2008, and continues to have difficulty with pain.  Lastly, I am concerned for this Soldier's degree of pain based on the radiology imaging of his recent Lumbar MRI [Magnetic Resonance Imaging] is not impressive, but he does feel he needs to have a significant amount of narcotics in his day to function in a sedentary lifestyle.  I find this most concerning because he has a significant drug abuse history with admitting to intravenous use of Meth with reporting no use for the past 
4 years, which I completely applaud, but does oppose concerns regarding his current treatment and addiction."
* Recommend permanent retirement for this condition

* TDRL Diagnosis Number 2, Bilateral Knee Pain from Chondromalacia Patella evaluated as Arthritis, Degenerative.

* Prognosis:  "Condition has been stabilized, and is poor for recovery and returning back to duty.  I suspect the significant increase in knee pain (R>L) has a direct correlation with his significant increase in weight (BMI [Body Mass Index] is up 17.7% from 2006).  Soldier will not meet retention criteria at 5 year mark for TDRL this year (2013)."
* Recommend permanent retirement for this condition

* Recommendation Summary:  I recommend permanent retirement for diagnoses 1 and 2

   a.  The examining medical official signed the final TDRL examination.

   b.  The applicant indicated that he agreed with the recommendation and placed his signature on the document on 21 December 2013.

   c.  The approving medical official approved the final TDRL examination.


6.  During the processing of this case, an Army Board for Correction of Military Records staff member contacted the U.S. Army Physical Disability Agency (USAPDA) for records pertaining to the applicant's final PEB.  A USAPDA official provided the following documents:

   a.  DA Form 199 that shows an informal PEB convened on 9 January 2014 at Fort Lewis, WA.

    	(1)  The following conditions (identified by VASRD codes) were determined to be unfitting:

* 5200 & 5237 – mechanical low back pain evaluated as lumbar strain – 10%
* 5003 – bilateral knee pain from chondromalacia patella evaluated as degenerative joint disease.  Soldier has had chronic knee pain since 2007 and has a BMI of 43.9%.  Provider believes knee pain is directly related to his obesity.  Knees exhibit normal range of motion.  Rated 10% for two or more major joints with normal range of motion – 10%
   
    	(2)  The PEB determined that the applicant's condition had not improved to the extent that he was fit for duty and found the applicant physically unfit.
   
    	(3)  The PEB recommended a combined rating of 20% and that the applicant be separated with severance pay, if otherwise qualified.

    	(4) The PEB Alternate President signed the PEB proceedings.

    	(5)  On 15 January 2014, the PEBLO confirmed that the applicant was fully briefed on the findings and recommendations of the PEB, and also on his legal rights pertaining thereto.

    	(6)  The applicant concurred, waived a formal hearing of his case, and placed his signature on the document on 15 January 2014.
   
    	(7)  On 23 January 2014, the PEB proceedings were approved for the SA.

   b.  USAPDA, Arlington, VA, Orders D023-16, dated 23 January 2014, removed the applicant from the TDRL and discharged him effective 23 January 2014.  The orders show he was granted a disability rating of 20% with entitlement to severance pay.

7.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures 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.

   a.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the Physical Disability Evaluation System (PDES).

	b.  Chapter 7 (TDRL) outlines procedures for administration and processing of Soldiers whose names are on the TDRL.

    	(1)  Paragraph 7-4 (Requirement for periodic medical examination and PEB evaluation) provides 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.  Soldiers who have waived retired pay to receive compensation from the Department of Veterans Affairs (VA), continue to be retired Army Soldiers.  These Soldiers must undergo examinations when ordered by Commander, USAPDA, acting on behalf of the SA.

    	(2)  Paragraph 7-7 (Prompt removal from TDRL) provides 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.  Placement on the TDRL confers no inherent right to remain for the entire 5-year period allowed under Title 10, U.S. Code, section 1210.

    	(3)  Paragraph 7-11 (Disposition of the TDRL Soldier – Action following periodic PEB evaluation or on fifth anniversary) provides that the USAPDA will remove a Soldier from the TDRL (as described below) on the fifth anniversary of the date the Soldier's name was placed on the list, or sooner on the approved recommendation of a PEB.

    	(a)  Permanent retirement.  If the Soldier meets the criteria below, the Soldier will be removed from the TDRL, permanently retired for physical disability, and entitled to receive disability retired pay:

* the Soldier is unfit
* the disability causing the Soldier's name to be placed on the TDRL has become permanent
* the disability is rated at 30% percent or more under the VASRD, or the Soldier has at least 20 years of active Federal service

    	(b)  Separation.  A Soldier will be removed from the TDRL and separated with severance pay if the Soldier:
* has less than 20 years of service
* is unfit because of the disability for which the Soldier was placed on the TDRL and either the disability has stabilized at less than 30% or the disability, although not stabilized, has improved so as to be ratable at less than 30%

   c.  Chapter 2 (Responsibilities and Functions) shows the SA will prescribe regulations to carry out the provisions of Title 10, U.S. Code, section 61.  Unless otherwise specified in this regulation, the SA reserves all powers, functions, and duties of the Army PDES.  Paragraph 2-4 shows the Commanding General, USAPDA, under the operational control of the Commander, U.S. Army Human Resources Command, will operate the Army PDES, to include:

* making the final decision whether a Soldier is unfit because of physical disability, except when such decisions are reserved to higher authority
* determining percentage rating and disposition

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was medically retired because his medical conditions were supposed to be reviewed every 18 months; however, he had only one review that resulted in him being medically discharged with severance pay on 23 January 2014.

2.  On 3 December 2008, the applicant's PEB recommended a combined rating of 30% (bilateral knee pain from chondromalacia patella evaluated as arthritis, degenerative (20%) and mechanical low back evaluated as lumbar strain (10%)).  On 14 December 2008, the PEB proceedings were approved and the applicant was placed on the TDRL.  The applicant was separated from active duty on 
11 February 2009 after having completed 2 years, 6 months, and 3 days of total active service and he was placed on the TDRL.

3.  The evidence of record shows 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.  Soldiers who waive retired pay to receive compensation from the VA continue to be retired Army Soldiers.  However, these Soldiers must undergo examinations when ordered by Commander, USAPDA, acting on behalf of the SA.  It cannot be determined from the available evidence of record if the applicant waived retired pay to receive compensation from the VA.

4.  The evidence of record shows the applicant underwent a final TDRL medical examination on the fifth anniversary of his approved PEB proceedings.  The examining medical official determined that the applicant's unfitting conditions had stabilized.  She provided a detailed prognosis on both of the unfitting conditions, including a professional opinion as to why the applicant's conditions had not improved nor would not improve.  She recommended permanent retirement.

5.  On 9 January 2014, the PEB considered the final TDRL examination and the medical examiner's professional opinion.  The PEB recommended a combined rating of 20% (mechanical low back evaluated as lumbar strain (10%) and bilateral knee pain from chondromalacia patella (with normal range of motion) evaluated as degenerative joint disease (10%)).  

   a.  The applicant concurred with the PEB proceedings and waived a formal hearing of his case.

   b.  On 23 January 2014, the PEB proceedings were approved and the applicant was discharged because of permanent physical disability with severance pay.

6.  The evidence of record shows the USAPDA will remove a Soldier from the TDRL on the fifth anniversary of the date the Soldier's name was placed on the TDRL and separate the Soldier with severance pay if he has less than 20 years of service and is unfit because of the disability for which the Soldier was placed on the TDRL and either the disability has stabilized at less than 30% or the disability has improved so as to be ratable at less than 30%  The evidence of record also shows the USAPDA will make the final decision whether a Soldier is unfit because of physical disability, determine the percentage rating, and final disposition.

7.  The evidence of record shows that the applicant's case was thoroughly reviewed and carefully considered throughout the PDES process.  

   a.  The applicant offers no explanation as to why he accepted the final 
PEB determination at the time or why he did not appeal the PEB findings and recommendations.

   b.  The available evidence does not show the Army misapplied either the medical factors involved or the governing statutory/regulatory guidance concerning his disability processing.
   c.  Therefore, the applicant's PEB proceedings are considered proper and equitable.

8.  In view of all 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)                                         AR20140011636



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ABCMR Record of Proceedings (cont)                                         AR20140011636



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