PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           24 August 2000
	DOCKET NUMBER:   AR2000035253

	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. Carl W. S. Chun		Director	
	Mr. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Allen L. Raub		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 that his records be corrected to show that he is retired by reason of permanent disability.  He is also requesting, in effect, that his disability rating percentage be increased.

3.  The applicant states that errors were made by the military officer who gave him his medical examination before he was medically retired; that he was not rated high enough for his diabetes or for his hearing; that his heart disease and arthritis were overlooked.  He contends that various service organizations have committed fraud against him; that they all had a chance to represent him with his claims for service-connected conditions and apparently have failed to do so.

4.  The applicant’s military records show that he was a career noncommissioned officer (NCO) who entered active duty in February 1955.  He served 20 years and was medically retired on 14 March 1975 in the rank of sergeant first class.  His last duty assignment was Fort Hood, Texas.

5.  On 9 January 1975, the applicant was given a medical evaluation board (MEB) for the following conditions:  diabetes mellitus, no evidence of vascular, renal or neurologic complications; hearing loss, mixed, bilateral, secondary to otosclerosis and stapedectomy performed 1970; hiatal hernia, small, symptomatic; peritendinitis, elbow, right; and chondromalacia, patella, right, secondary to fracture sustained in November 1959.  The MEB recommended that the applicant’s case be considered by a physical evaluation board (PEB).  The findings and recommendations of the MEB were approved.

6.  On 20 January 1975, an informal PEB found the applicant physically unfit for further duty due to diabetes mellitus requiring 40 units of insulin.  His knee and elbow pain was noted as not ratable; the hernia and hearing loss were not discussed.  The PEB recommended that he be permanently retired from the service with a combined disability rating of 20 percent.  The applicant did not concur and demanded a formal hearing with personal appearance.  A second informal PEB was then held on 13 February 1975 which did not change the initial findings, but recommended a 40 percent disability rating.  The applicant concurred with the findings.

7.  The applicant was honorably discharged on 14 March 1975 by reason of permanent physical disability and placed on the retired list on 15 March 1975 with a permanent disability rating of 40 percent.  He had 20 years and 29 days of creditable active Federal service.

8.  The applicant's DD Form 214, Report of Separation From Active Duty, lists his type of separation (Item 9a) as "Retirement" and the authority and reason (Item 9c) as "Para 5-8e(1) AR 635-40."

9.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.  Section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rating of at least 30 percent.  Title 38, United States Code, sections 310 and 331, permit the Department of Veterans Affairs (VA) to provide treatment and to award compensation for disabilities which were incurred in or aggravated by active military service.

10.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System according to the provisions of chapter 61, title 10, United States Code (10 USC 61) and Department of Defense Directive (DODD) 1332.18.  It 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.  If a soldier is found unfit because of physical disability, the regulation provides for disposition of the soldier according to applicable laws and regulations.  Paragraph 4-24e(1) of the regulation then in effect states that based upon the final decision, the U.S. Total Army Personnel Command (PERSCOM) will issue retirement orders for permanent retirement for physical disability (see 10 USC 1201 or 1204).

11.  Army Regulation 635-40, paragraph 7-2, provides a distinction between a temporary and permanent physical disability.  It states that an individual may be placed on the TDRL (Temporary Disability Retired List) for a maximum period of 5 years (which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty, or the individual's disability is not stable and the degree of severity may increase within the next 5 years so as to change the disability rating.

CONCLUSIONS:

1.  The applicant's DD Form 214 is incorrect.  Item 9a (Type of Separation) should read "Retirement, Disability, Permanent."  Item 9c (Authority and Reason) should read "Para 4-24e(1) AR 635-40.  The Special Program Designator (SPD) code should continue to reflect "SFJ."

2.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated; the percentage of disability rating reflects the soldier's physical condition at separation and that percentage is permanent.  The only time an Army rating may change is during a soldier's period on the TDRL while awaiting stabilization of an unfitting condition.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability up or down based upon the VA's examinations and findings.  

3.  The applicant was properly evaluated for an unfitting medical condition and declared physically unfit with a combined rating of 40 percent and recommended for permanent disability retirement.  On 28 February 1975, PERSCOM issued Letter Order Number D 2-333 directing that the applicant be "relieved from assignment and duty and placed on the RETIRED LIST . . . by reason of physical disability" rated at 40 percent.  That percentage rating became final upon discharge.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by issuing to the individual concerned a DD Form 215, Correction to DD Form 214, to reflect:  in Item 9a (Type of Separation) "Retirement, Disability, Permanent" and in Item 9c (Authority and Reason) "Para 4-24e(1) AR 635-40.  The Special Program Designator (SPD) code should remain "SFJ."

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__gdp___  __clg____  __alr ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		   __George D. Paxson__
		        CHAIRPERSON

INDEX

CASE ID	AR2000035253	
SUFFIX		
RECON		
DATE BOARDED	20000824	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	108.0000	
2.	108.0001	
3.	142.0000	
4.		
5.		
6.