PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  18 August 1999
	DOCKET NUMBER:   AR1998000583

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Theodore G. Heartley .		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Edward L. Williamson		Member	
	Ms. Sherri V. Ward		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that the time he spent on the temporary disability retired list (TDRL) from March 1993 to April 1996 be expunged from his records; and that his previously approved voluntary separation incentive (VSI) pay election be reinstated.

3.  The applicant states, in effect, that on 1 February 1995, he was denied VSI reinstatement because he did not have 5 continuous years of military service as required under Title 10 United States Code (USC), Section 1175a; that he was not advised the time he spent on TDRL was considered a break in service; and that he would not be eligible for VSI reinstatement if he were removed from the TDRL and became physically able to return to active duty.

4.  In support of his request, the applicant submitted a number of documents including his detailed personal statement; a request for unqualified resignation; a separation order dated 11 March 1992; a copy of medical evaluation board (MEB) proceedings; an application for retention on active duty dated 17 July 1992; a medical record report for hospitalization from 29 July 1992 to 27 August 1992; MEB processing documents; a copy of TDRL order dated 29 January 1993; a copy of an order termination his aviation service and aviation career incentive pay dated 12 February 1993; a copy of TDRL evaluation for 60% disability dated 14 April 1994, a copy of physical evaluation board (PEB) proceedings with a 10% disability rating and dissenting opinion; a copy of his PEB rebuttal; a copy of PEB proceedings with a fit for duty rating; a copy of a U.S. Total Army Personnel Command (DA PERSCOM ) fit for duty order and removal from the TDRL dated 22 April 1996; a copy of 2 congressional inquiries to the U. S. Army Disability Agency; and a copy of a request for exception to policy for payment of VSI to DA PERSCOM.

5.  The applicant’s military records show that entered active duty as a commissioned officer on 6 August 1982.

6.  On 13 January 1992, while assigned to Fort Rucker Alabama, he requested an unqualified resignation and VSI with an effective date of 15 August 1992 or as practicable thereafter.

7.  On 11 March 1992, his request was approved and a discharge order was issued for his separation from the Regular Army with VSI and effective date of 15 August 1992.

8.  In his personal statement, he stated that in June 1992, he suffered a relapse of a neurological medical condition known as bilateral ascending peripheral neuropathy, a disorder of peripheral nerves and destruction of the myelin sheath of nerve tissues.  

9.  His medical history shows that his condition was initially diagnosed as Guillian-Barre Syndrome shortly after his return from Operation Desert Storm.  His recovery from, initially more severe symptoms, was gradual yet complete and his symptoms did not 
reoccur until June 1992.
MEB proceedings were initiated on 17 July 1992.  He was hospitalized from 29 July 1992 to 27 August 1992 and his discharge was delayed until 15 November 1992 and then changed again to 15 February 1993 to await the outcome of the MEB/PEB processing.

10.  On 29 January 1993, he was released from active duty and placed on TDRL with an effective date of 6 March 1993 and 60% disability.

11.  A subsequent TDRL examination on 14 April 1994, recommended that he remain on TDRL for an additional 18 months.

12.  On 1 June 1994, PEB proceedings diagnosed his condition as chronic demyelinating polyneuropathy; that although he had improved and his condition was in remission, he remained unfit to reasonably perform duties required by his rank and specialty; and that he should be separated for permanent disability with severance pay and a physical disability rating of 10%.  

In a minority opinion, a PEB member, stated, in effect, that his condition was in complete remission; that there were no residuals from his previous diagnosis; that the acute process had resolved completely as attested by his private doctor; and that he believed he was fully capable of returning to active duty.  The minority opinion further stated that he had been neurologically normal since August 1993; that he had been a full-time student and employed during the past year; that he had an intense desire to return to active duty; and that the presumption that he may undergo exacerbation in the future did not warrant a permanent disability rating when there were no deficits present and no medical grounds existed for calling him permanently unfit.

13.  In his rebuttal to the PEB findings, he stated, in effect, that he was insulted by the finding of 10% with a medical separation; that if the board found him unfit, he should be medically retired; and that if the board found him fit, then he should be fully restored to active duty in his aviation specialty and former rank.

14.  On 19 July 1994, the PEB changed the initial findings and determined, after review of his rebuttal and an additional review of the medical evidence, that his condition had been resolved.  The PEB stated that he was physically fit to reasonably perform his duties as a commissioned officer in the U.S. Army. 

15.  DA PERSCOM order dated 22 April 1996 indicated that he was fit for duty and removed from the TDRL as of 22 April 1996.  There was nothing in his records that indicated he served on active duty between 19 July 1994, the date he was found fit for duty by the PEB and 22 April 1996, the date he was declared fit for duty and removed him from the TDRL by DA PERSCOM.

16.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred and will, if it appears as though a member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEB.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether 
they are able to perform the duties of their grade and specialty with the medically 
disqualifying condition.  The fact that an individual has a medically disqualifying condition does not mandate separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor regarding separation.  If the PEB determines that an individual is physically unfit, it will recommend a percentage of disability to be awarded which, in turn, determines whether that individual will be discharged with severance pay or retired.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined the individual suffers from an impairment that disqualifies the individual from further military service.  In this regard, the Army rates only conditions determined to be physically unfitting, thereby compensating the individual for the loss of a career. 

17.  Title 10 USC, Section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 
30 percent.

18.  Title 10 USC, Section 1201, provides for the physical disability separation with severance pay of a member who has less than 20 years of service or a disability rated at less than 30 percent.

19.  In the processing of this case, the staff of the Board obtained an advisory opinion from DA PERSCOM, Officer Retirements Section, stating, in effect and in pertinent part, that the applicant provided compelling documentation and justification to support removal of TDRL status from his records in order to reinstate his previously approved VSIP status.  The opinion further stated that he was not properly advised of the impact TDRL status would have on his previously approved VSIP; that he did not have all of the information he should have had prior to accepting TDRL status; and that he acted in good faith the lengthy period of time in question.

20.  In his comment to the advisory opinion, he stated that the advisory opinion supported his request for reinstatement of his VSI.

CONCLUSIONS:

1.  The Board concludes that compelling evidence exists to show that the 
applicant was not made fully aware of the impact on his previously approved voluntary separation incentive pay by being referred for medical evaluation board and physical evaluation board processing and placement on the temporary disability retired list.   

2.  The Board further concludes that his approval for voluntary separation incentive pay, for all practical purposes, already signaled the end of his military career, therefore, there was no real benefit for referring him for MEB or PEB processing or no loss of 
career for which to compensate him.

3.  In view of his particular medical circumstances, the Board believes if he had been properly counseled, it is reasonable to conclude that he very likely would have opted not to enter physical disability processing since the outcome of either a medical retirement or physical disability separation with severance pay might have the potential for less economic benefit than his approved separation with VSI.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

	a.  Amending the separation order of the individual concerned to show that he was voluntarily separated on 6 March 1993 under the authority of Title 10, Sections 1174A and 1175 with entitlement to voluntary separation incentive pay;

	b.  Recouping all pay and allowances paid to him while on the temporary disability retired list and paying him voluntary separation incentive pay; and by 

	c.  Issuing him a new DD Form 214.

BOARD VOTE:  

__RC___  ___EW__  ___SW __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor_
		        CHAIRPERSON

INDEX

CASE ID	AR1998000583	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990818	
TYPE OF DISCHARGE	RETIREMENT	
DATE OF DISCHARGE	19930306	
DISCHARGE AUTHORITY	AR635-40	
DISCHARGE REASON	TEMPORARY DISABILITY	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128	
2.		
3.		
4.		
5.		
6.