MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 November 2000                   
	DOCKET NUMBER:   AR2000045625

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

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Martha E. Schuler		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  That his separation for physical disability with severance pay be changed to a medical retirement.

APPLICANT STATES:  That at the time of separation he met the criteria for medical retirement.  He had less than 20 years of active duty, he was medically unfit to continue military service, and his injuries/illnesses manifested themselves to a degree greater than 20 percent disabling.  He provides his Certificate of Release or Discharge from Active Duty, DD Form 214, as supporting evidence.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 13 June 1978.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

In February 1989, the applicant suffered a crush injury to his right upper extremity with a laceration on the volar aspect of his right dominant wrist during a routine training exercise.  

On 26 August 1989, the applicant was placed on the Temporary Disability Retired List (TDRL) with a 40 percent disability rating.  The Physical Evaluation Board (PEB) proceedings for this action is not available.

A TDRL reevaluation dated 3 April 1991 noted that the applicant’s therapy and postoperative course culminated with what the examiner considered to be a good result.  The applicant had full functional use of his right upper extremity and desired to be returned to active duty.  He was referred to a PEB.  An informal PEB was held but the paperwork is not available.

On 19 April 1991, the VA reduced the disability rating of the applicant’s right upper extremity injury from 40 percent to 20 percent as evidence showed improvement relative to the injury with current findings showing good strength and primary symptoms of sensory loss.

On 26 July 1991, the applicant rebutted the findings and recommendation of the informal PEB.  He stated that he remembered telling the physician of his desire to be taken off the TDRL because he was having a tremendous amount of difficulty getting permanent employment and this made his being a divorced father of five difficult.  He still experienced pain in his arm and hand.  

The PEB reviewed the applicant’s rebuttal and, after reviewing his case, determined that he was fit to return to active duty.  He apparently requested a formal PEB at this point.

On 28 August 1991, a formal PEB was held.  The PEB determined that he was fit to perform the duties of his military occupational specialty and grade.  

On 2 September 1991, the applicant rebutted the findings and recommendation of the PEB.  He contended that he was examined by an orthopedic doctor, not a neurologist although his records indicated he had nerve damage to his arm, shoulder and hand.  He contended that the PEB’s decision was erroneous and that the decision of the VA neurologist in March 1991 rating him at 20 percent disabled was correct.

On 10 September 1991, the PEB reviewed the applicant’s rebuttal and his entire file and determined that there was no change to the findings and recommendations of physically fit for further military service.  The PEB proceedings were forwarded to the U. S. Army Physical Disability Agency for review and final approval.  

Effective 27 September 1991, the applicant was removed from the TDRL and was offered the opportunity to reenlist within 90 days.  On 26 December 1991, he reenlisted in the Regular Army.

On 20 October 1992, the applicant was discharged by reason of physical disability, with severance pay, with a disability rating of 20 percent.  He had completed just over 12 years of creditable active service.  The PEB proceedings for this action are not available.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty. 

Army Regulation 635-40 also prescribes the function of the TDRL.  The TDRL is used in the nature of a “pending list.”  It provides a safeguard for the Government against permanently retiring a soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability..

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant was properly placed on the TDRL with a disability rating of 40 percent.  The TDRL is used in the nature of a “pending list” in part to safeguard the Government against permanently retiring a soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  This is just what occurred in the applicant’s case.  The 3 April 1991 TDRL reevaluation noted that his therapy and postoperative course culminated with what the examiner considered to be a good result, giving the applicant full functional use of his right upper extremity.  The April 1991 VA examination showed evidence of improvement relative to the injury with findings showing good strength and primary symptoms of sensory loss to the degree that the VA reduced his rating from 40 percent to 20 percent.  The applicant stated in his      2 September 1991 rebuttal that the VA neurologist’s rating of 20 percent was correct.

3.  The applicant reenlisted in the Regular Army when he was offered the opportunity to do so upon his removal from the TDRL.  He presumably underwent another PEB evaluation in 1992 that culminated in his separation for physical disability with severance pay with a 20 percent disability rating.  This is the same rating the VA last granted him and which he stated just a year earlier was correct.  There is no evidence to show that he was permanently disabled at any disability rating level higher than 20 percent at any time.  The law provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  The Board therefore concludes that he was properly discharged, with severance pay, rather than medically retired.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__wtm___  __jea___  __mes___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000045625	
SUFFIX		
RECON		
DATE BOARDED	20001116	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.02	
2.	108.04	
3.		
4.		
5.		
6.