MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 December 2000                  
	DOCKET NUMBER:   AR2000047579

	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	
	Ms. Wanda L. Waller 		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell 		Chairperson	
	Mr. Allen L. Raub 		Member	
	Mr. Jose A. Martinez 		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 he be placed back on the Temporary Disability Retired List (TDRL) with a disability rating of 40%.  

APPLICANT STATES:  That the VA doctor who conducted his TDRL reexamination recommended to the Physical Evaluation Board (PEB) that the applicant remain on the TDRL for at least another year.  He contends the formal PEB totally disregarded this recommendation and separated him with severance pay.  He also contends that the VA doctor noted that his condition was unstable and that the PEB ruled that his condition was stable without ever examining him. In support of his application, he submits a complete copy of all of his medical records, supporting documentation that was presented to the formal PEB and a cassette tape of his formal PEB conducted on 23 May 2000.    

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

The applicant enlisted on 2 April 1991 and trained as an administrative specialist.

On 6 December 1998 the applicant was determined to be unfit for duty because of physical disability rated at 40 percent and placed on the TDRL.  

The applicant appeared for a periodic physical examination on 22 February 2000 at the Veterans Administration Medical Center in Albany, New York.  In the examining physician’s opinion, he determined that the applicant’s overall impairments appear to be mild to moderate, with the significant impairments being caused by pain, stiffness, and difficulty with lifting with the left hand and arm, repetitive motion, and fine manipulation, as indicated in the medical history. In pertinent part, the examination states “Suggest a time, not to exceed 
18 months, for the next evaluation, I believe the Veteran should be reevaluated in one year.”     

On 22 March 2000 a PEB found the applicant physically unfit due to chrondrocalcinosis with a diagnosis of pseudogout, VA Schedule for Rating Disabilities (VASRD) codes 5099, 5017 and 5002.  The PEB recommended a combined rating of 20% and separation with severance pay.  In its decision, the PEB stated “Left wrist better and Rheumatology exam showed normal limits range of motion throughout without swelling (exam date 7 January 00).  Veterans Administration exam showed range of motion of elbows, knees, ankles, and wrists to be within normal limits.  Pain at the end of the day is the problem.”  The applicant did not concur with the board’s decision and requested a formal hearing.    

On 23 May 2000 a formal PEB affirmed the same findings and recommendations of the PEB conducted on 22 March 2000.  The applicant did not concur with the formal PEB’s decision and submitted a statement in rebuttal.

On 16 June 2000 a PEB determined that the applicant’s rebuttal did not provide information as to any new diagnosis or changes in his currently rated disability and affirmed the decision of the informal PEB that found the applicant unfit with a disability rating of 20%.  His case was forwarded to the U.S. Army Physical Disability Agency (USAPDA) for review.

On 20 June 2000 the USAPDA affirmed the PEB’s findings and recommendations.

Accordingly, the applicant was removed from the TDRL and discharged with severance pay based on permanent physical disability rated at 20 percent effective 21 June 2000.

In the processing of this case, a staff advisory opinion was obtained from the Department of the Army Review Boards Agency Medical Advisors.  In their opinion, after careful review of the correspondence and medical records, the rating codes used by the PEB of 22 March 2000 (5099, 5017 and 5002) are the correct rating codes for this case, not the original rating code of 5003.  The medical advisors also determined that this review found the ranges of motion which the applicant exhibited during his TDRL examination on 22 February 2000, all fell within the guidelines of Army Regulation 40-501, paragraphs 3-12b and
3-13d.  The only joint noted to have “some pain” was the left wrist.  This opinion points out that the evidence of record clearly notes a stable, chronic condition with occasional acute exacerbations.  It was noted that the applicant has had only two acute episodes in the last year, and this conforms to the VASRD rating requirement for 20% disability.    

On 17 October 2000 the advisory opinion was furnished to the applicant for his review and possible rebuttal (30 day suspense from date of letter).  However, as of 21 November 2000 there has been no rebuttal submitted to the Board.

Title 10, United States Code, section 1202, provides for the placement of a member on the Temporary Disability Retired List when the disability may be permanent.  Placement on the Temporary Disability Retired List requires that the member meet the criteria of Title 10, United States Code, section 1201.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

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, and advisory opinion(s), it is concluded:

1.  The Board notes the applicant’s contention that his condition is unstable and that he should be placed back on the TDRL.  However, the evidence of record does not support this contention.

2.  Evidence of record shows that a PEB determined that the applicant had an unstable medical condition which could improve or increase in severity over a period of time.  He was therefore properly placed on the TDRL for subsequent reevaluations.  After his condition was determined to be stable, and rated 20 percent disabling at the time, he was separated from the service by reason of physical disability with entitlement to disability severance pay in accordance with regulation.

3.  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 or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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

AMC___  ALR_____  JAM_____  DENY APPLICATION

		    Karl F. Schneider
		    Deputy Assistant Secretary
    (Army Review Boards)

INDEX

CASE ID	AR2000047579	
SUFFIX		
RECON		
DATE BOARDED	20001205	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19981205	
DISCHARGE AUTHORITY	AR 635-40 Para 4-24B(2)	
DISCHARGE REASON	Temporary Disability Retired List	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.0500	
2.		
3.		
4.		
5.		
6.