RECORD OF PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            FEBRUARY 5, 2004                 
	DOCKET NUMBER:   AR2003089956

	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. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. John P. Infante		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his 30 April 1983 separation for permanent physical disability (10%) with entitlement to severance pay be changed to retirement at a rate of 40% disability.

2.  The applicant states, in effect, that he was improperly separated with 10% disability after being on the Temporary Disability Retired List (TDRL) at 80% for 4 years.

3.  The applicant provides copies of his medical board reports, clinical summaries, Medical Evaluation Board (MEB) Proceedings, Physical Evaluation Board (PEB) Proceedings, two electroencephalogram reports, and a letter from a civilian neurologist.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  Counsel requests that the applicant be granted medical retirement with a 40% disability rating effective 30 April 1983, with entitlement to all back pay and allowances.

2.  Counsel states, in effect, that neuropsychological testing revealed that the applicant's cerebral functions were impaired and that he was placed on the TDRL in November 1979 with an 80% disability rating for "Organic brain syndrome, with seizure disorder".  In his second TDRL examination in January 1983, the diagnosis was changed to "Idiopathic Epilepsy", which was controlled by medication.  However, no neuropsychological testing was done.  In May 1983, an informal PEB granted him 10% disability under the Veterans Administration Schedule for Rating Disabilities (VASRD) Code 8910, for "Seizure disorder, history of controlled on medication".  He goes on to state that the applicant disagreed, was granted a formal PEB, and was represented by military counsel.  However, the formal PEB upheld the findings of the informal PEB and the applicant was separated on 30 April 1983 with a 10% disability rating.  He further states that the applicant's counsel and the PEB failed to recognize that the applicant should have also received disability compensation for his cognitive deficits, which require a 30 % disability rating under the VASRD codes 9310 or 9311.  Accordingly, he should have been granted medical retirement at 40%.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error and injustice which occurred on 30 April 1983.  The application submitted in this case is dated 19 April 2003.  

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in Jacksonville, Florida, on 22 June 1972 for a period of 4 years, a cash enlistment bonus and assignment to Korea.  He successfully completed his training at Fort Jackson, South Carolina and waived his enlistment option for assignment to Korea for an assignment to the 3rd Infantry Regiment (The Old Guard) at Fort Myer, Virginia, for duty as a light weapons infantryman.  He was advanced to the pay grade of E-4 on 30 April 1974.

4.  On 6 May 1974, he reenlisted for a period of 6 years and assignment to Fort Benning, Georgia.  He was transferred to Fort Benning on 1 June 1974.  He remained at Fort Benning until 2 December 1975, when he was transferred to Greece, for duty as a security guard in an artillery detachment.  He was promoted to the pay grade of E-5 on 13 May 1977 and remained in Greece until 15 July 1977, when he was transferred to Fort Campbell, Kentucky.

5.  On 10 February 1978, he was admitted to the hospital for seizures.  He was again admitted on 4 March 1978 for seizures and was transferred to Walter Reed Army Medical Center (WRAMC) on 17 March 1978.  He was returned to the hospital at Fort Campbell on 27 March 1978.  He was again admitted to the hospital on 15 January 1979 and was again transferred to WRAMC on 2 February 1979.  He was returned to his unit on 7 February 1979.  He was again admitted to the hospital for seizures on 16 July 1979 and on 1 August 1979, he was transferred to the medical center at Wright-Patterson Air Force Base (WPAFB) , Ohio, where he was diagnosed with organic brain syndrome with seizure disorder and acne vulgaris and acne rosacea.  On 17 September 1979, a MEB convened at WPAFB, Ohio and recommended that he be referred to a PEB.

6.  On 13 November 1979, a PEB convened and determined that the applicant was physically unfit by reason of etiologically, poorly defined organic brain syndrome with five major seizures in the past year.  The PEB recommended that he be placed on the TDRL with a disability rating of 80%.  The applicant concurred with the findings and recommendations and waived a formal hearing of his case.  The findings and recommendation were approved and on 26 December 1979, he was placed on the TDRL.

7.  On 18 September 1980, he underwent a periodic physical examination and the neurologist's impressions were that he had a seizure disorder and was a brain tumor suspect.  He ordered additional tests to be conducted and for the applicant to return in a month.  The applicant returned on 7 October 1980 and the results of his test resulted in the impression that his electroencephalogram (EEG) was mildly abnormal with equivocal gradient to the left temporal area.

8.  He again underwent a periodic physical examination in 1981 and the physicians recommended that he should remain on the TDRL for an additional 18 months and that he be permanently retired.  On 16 July 1981, a PEB recommended that he be retained on the TDRL and reexamined in January 1983.  The recommendation was approved on 21 July 1981. 

9.  He was again evaluated in January 1983 and informed the physician that his last seizure was in February 1982.  The physician indicated that the applicant had been seizure-free since being prescribed 60 milligrams of Phenobarbital and his impression was that the applicant had "Idiopathic epilepsy in remission on Phenobarbital".  The military physician recommended that he be considered for medical retirement.

10.  On 4 March 1983, a PEB was convened to reconsider the applicant's fitness for duty.  The applicant's disability description was Seizure disorder, history of, controlled on medication, under VSARD code 8910.  The PEB noted that the current evaluation indicates he remains unfit because of seizure disorder and results of psychological testing.  The PEB recommended that he be separated from the service with severance pay at the rate of 10%.

11.  The applicant did not concur with the findings of the PEB and requested a formal hearing, personal appearance before the PEB and representation by counsel.

12.  He appeared before a PEB at Fort Gordon, Georgia, on 29 March 1983 and was represented by counsel.  After answering a series of questions, the applicant's counsel summarized the applicant's position by stating that she would try to obtain confirmation of the applicant's assertion that he had experienced a seizure on 24 March 1983, just days before the Board.  She also contended that the applicant should receive a 40% disability rating for his seizures and he still had organic brain syndrome or disease and thus was entitled to at least a 30% disability rating for that diagnosis.  

13.  The PEB found that the applicant was physically unfit to perform his duties and recommended that he be separated from the service by reason of physical disability at the rate of 10%.

14.  The applicant's counsel submitted a letter of rebuttal and request for reconsideration of the applicant's case on 1 April 1983.  She asserted that the applicant had a seizure on 24 March 1983 and was entitled to a rating of 40% because he had a seizure within the past 6 months.  She also asserted that his seizure in February 1982 should entitle him to at least a 20% rating.  The PEB reviewed the rebuttal and determined that the information was insufficient to warrant a change.  His case was forwarded to the Physical Disability Agency in Washington, D.C. for final action.

15.  The findings and recommendations of the PEB were approved and on 30 April 1983, the applicant was separated by reason of physical disability at a rate of 10%. 

16.  There is a difference between the VA and Army disability systems.  While both the VA and the Army use the VASRD to determine disability ratings, not all of the general policies set forth in the VASRD apply to the Army; thus there are sometimes differences in ratings.  The Army’s determination of a soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his grade, rank, or rating.  If the soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a soldier unfit by reason of service connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

17.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-2b, provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

DISCUSSION AND CONCLUSIONS:

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

2.  The evidence of record shows that the applicant was originally diagnosed with "Organic brain syndrome with seizure disorder" and over the course of years of treatment while on the TDRL, the diagnosis was changed to "Seizure disorder, history of, controlled on medication" and listed under VASRD Code 8910.  The evidence suggests that his condition improved over the years on medication, which resulted in the change in diagnosis. 

3.  The applicant's contention that the PEB and his counsel ignored the fact that he should have been evaluated for his cognitive deficits appears to be without merit.  The applicant's counsel raised this issue in the formal PEB and in her rebuttal to the PEB findings and recommendations.  However, the applicant was diagnosed as having a seizure disorder that was controlled by medication and there is no evidence to suggests that the original diagnosis was still valid.  Accordingly, the PEB considered the current diagnosis and made the appropriate award of disability based on the evidence available.

4.  While the applicant and his counsel argue that the diagnoses was still valid at the time, they have failed to show through evidence submitted with the application or the evidence of record that such was the case or that the applicant was unjustly separated based on the diagnosis at the time.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 30 April 1983; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 April 1986.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

fne_____  kah_____  jpi_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		___Fred N. Eichorn___
		        CHAIRPERSON

INDEX

CASE ID	AR2003089956	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040205	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.108.0200	179/prcntg	
2.		
3.		
4.		
5.		
6.