BOARD DATE: 18 February 2016 DOCKET NUMBER: AR20140016975 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his records to show he was permanently retired with a physical disability rating of 80 percent (%). 2. The applicant states the U.S. Army Physical Disability Agency (USAPDA) did not follow the Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). a. A physical evaluation board (PEB) recommended a disability rating of 30% with permanent retirement. He notes this PEB contains information about an airborne landing incident in 2001, which is inaccurate and that had nothing to do with the reason he was medically retired on 29 September 2008. b. During the process of submitting his claim for combat-related special compensation, a revised PEB was brought to his attention that was completed after his medical retirement. This revised PEB shows the correct cause of his injuries with a recommended physical disability rating of 80% and placement on the Temporary Disability Retired List (TDRL). c. He states that neither the Fiscal Year 2008 National Defense Authorization Act (FY08 NDAA), Public Law 110-181, nor the Secretary of Defense directive to apply VASRD, section 4.129, to post-traumatic stress disorder (PTSD) unfitting conditions for Soldiers discharged on or after 11 September 2001 were followed in his case. As a result, his PEB is incorrect and unjust. 3. The applicant provides copies of his PEB proceedings and permanent retirement orders. CONSIDERATION OF EVIDENCE: 1. The applicant had prior enlisted service in the Regular Army, Army National Guard (ARNG) of the United States (ARNGUS), and U.S. Army Reserve from 15 July 1997 through 14 July 2004. 2. He had a break in military service from 15 July 2005 through 24 July 2006. 3. He enlisted in the ARNGUS and Texas ARNG on 25 July 2006 for a period of 6 years. 4. He was ordered to active duty in support of Operation Iraqi Freedom on 17 May 2007 for a period of 400 days. On 13 June 2007, he was issued temporary change of station orders to the Medical Retention Center, Fort Gordon, GA, for a period not to exceed 370 days. 5. Headquarters, U.S. Army Human Resources Command (HRC), Alexandria, VA, Orders A-08-717522, dated 10 August 2007, as amended, retained the applicant on active duty for a period of 537 days ending 31 January 2009. 6. A review of the applicant's official military personnel file (OMPF) failed to reveal copies of any documents relating to his medical evaluation board (MEB)/PEB proceedings. 7. In support of his application the applicant provides the following documents. a. A DA Form 199 (PEB Proceedings) that shows an informal PEB convened on 25 August 2008. It shows the applicant's conditions were incurred in line of duty. (1) The following conditions were determined to be unfitting: * VA Codes 8045 and 9304 – "Cognitive disorder from an event in 2000 when the Soldier was on active duty and fell from an aircraft, landing face first and fracturing his nose. There is comorbid PTSD reportedly stemming from an incident 7 May 2007, where he sustained testicular injury during training and in addition, there is attention deficit disorder (which is a condition not constituting a physical disability and was not felt to be directly related to either of these diagnoses)." Rating reflects the overall neuropsychological impairment of the Soldier. Recommended disability: 30% * VA Codes 8799 and 8730 – "Right groin pain. Rated analogous to VASRD DC 8520 IAW [in accordance with] VASRD 4.20." Rated as moderate IAW VASRD 4.124. Recommended disability: 0% (2) The PEB recommended permanent retirement based on the length of time the applicant's cognitive disorder had been present. (3) The PEB alternate president signed the PEB proceedings. (4) On 2 September 2008, the PEB Liaison Officer (PEBLO) confirmed that the applicant was fully briefed on the findings and recommendations of the PEB, and also on his legal rights pertaining thereto. (5) The applicant concurred, waived a formal hearing of his case, and placed his signature on the document. (6) This DA Form 199 is absent the signature of the approving authority. b. U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Sam Houston, TX, Orders 253-0109, dated 9 September 2008, as amended by Orders 273-0113, dated 29 September 2008, released the applicant from assignment and duty on 28 October 2008 based on permanent physical disability and placed him on the retirement list, in the retired grade of E-4, with a disability rating of 30%, effective 29 October 2008. c. A DA Form 18 (Revised PEB Proceedings) that shows an informal PEB convened on 21 October 2008. It shows the applicant's conditions were incurred in line of duty. (1) The following conditions were determined to be unfitting: * VA Code 9411 – "PTSD resulting from an injury during urban self-defense training. He has recurrent nightmares every few weeks, mild startle response, some irritability, and hypervigilance. Other symptoms overlap with TBI [traumatic brain injury] residuals. The impairment from this condition is minimal in terms of interfering with function, but the risk of recurrence and exacerbation is unacceptable in the military setting. Rated at 10 for occupational and social impairment due to mild or transient symptoms which decrease efficiency and ability to perform occupational tasks only during periods of significant stress. However, IAW VASRD paragraph 4.129, Soldier is temporarily awarded 50%." * VA Code 8045 – "Residuals of TBI not elsewhere classified. These residuals render the Soldier unfit because of inability to remember locations and directions. Although he also showed some problems with attention and concentration, his noncompensable attention deficit hyperactivity disorder likely was the major factor. Testing showed a subtle deficit in higher level reasoning without functional impact. The unfitting residuals of memory problems are rated at level of impairment 2 of the 10 facets considered and is rated at 40% IAW VASRD instructions found at 4.124a." Recommended disability: 40% * VA Code 6847 – "Obstructive Sleep Apnea with daytime hypersomnolance. Soldier is not using CPAP [continuous positive airway pressure]. The requirements for rest and duty hour restrictions are inconsistent with the demands on an 11B [Infantryman]." Recommended disability: 30% * VA Codes 8799 and 8730 – "Right groin pain. Rated analogous to VASRD DC 8520 IAW VASRD 4.20. This limits his ability to run and move freely as an 11B must. The physicians do not feel that this is related to his right inguinal hernia. Rated as moderate IAW VASRD 4.124." Recommended disability: 0% (2) The following conditions were determined not to be separately unfitting: * degenerative disc disease with herniated lumbar disc at L4-5 * chronic bilateral knee pain * bilateral hip pain (3) The following conditions were determined not to be unfitting: * status post septoplasty for history of nasal fracture with left nostril pain * headache syndrome * hypercholesterolemia * chronic right shoulder pain * hypertension (4) It shows the diagnosis of attention deficit disorder is a condition not constituting a physical disability. (5) The PEB recommended a combined rating of 80% and placement on the TDRL with reexamination during July 2009. (6) Major L____ R. C____ signed the revised PEB proceedings for D____ M. T____, Chief, Operations Division, USAPDA, on 21 October 2008. (7) The DA Form 18 is absent the signatures of the PEBLO and the applicant. (8) The DA Form 199 is absent the signature of the approving authority. 8. In connection with the processing of this case, the USAPDA was asked to provide information relevant to the applicant's MEB/PEB processing. A copy of the applicant's MEB/PEB case file was provided. a. A DA Form 3947 (MEB Proceedings), dated 26 June 2008, shows an MEB reviewed the applicant's clinical records, laboratory findings, and physical examination, along with the views presented by the applicant in his own behalf. (1) The MEB found the applicant had the following unfitting medical conditions/defects: * PTSD * degenerative disc disease with chronic low back pain * lumbar herniated disc L4-5 * chronic left knee pain due to medical meniscus tear * chronic right knee pain with history of partial meniscectomy with aggravation and current chondromalacia * chronic right groin pain, due to testicular trauma * obstructive sleep apnea, not tolerating CPAP * bilateral hip pain * cognitive disorder (2) The MEB found the applicant had the following medically acceptable medical conditions/defects: * status post septoplasty for history of nasal fracture with left nostril pain * headache syndrome, non-incapacitating * right inguinal hernia * attention deficit disorder, existed prior to service * hypercholesterolemia * chronic right shoulder pain, minimal and intermittent * hypertension (3) The MEB proceedings show that on: * 1 July 2008, the findings and recommendation of the board were approved * 9 July 2008, the applicant indicated he did not agree with the board's findings and recommendations and attached his appeal * 11 July 2008, the appeal was considered, the original findings and recommendations were confirmed, and the report of the board was forwarded to the PEB b. A DA Form 199 that shows an informal PEB convened on 25 August 2008 (as summarized in paragraph 7a, above); however, this DA Form 199 is marked-up with handwritten comments. The findings and recommendations of the PEB were approved on behalf of the Secretary of the Army on 5 September 2008. c. A DA Form 18 that shows an informal PEB convened on 21 October 2008 (as summarized in paragraph 7c, above). d. USAPDA, Washington, DC, memorandum, dated 21 October 2008, subject: Revision of the PEB Proceedings. It shows a copy of the DA Form 18 describing the changes that had been made (and reasons) was forwarded to the applicant, along with instructions for providing his agreement or disagreement with the revised PEB proceedings and to return it to the USAPDA by 31 October 2008. It also shows, "[f]ailure to submit an election by the suspense date [31 October 2008] will be treated as concurrence with the Agency modification." e. An email message string (dated 3 and 4 November 2008) that shows: * his case was reviewed under the provisions of the FY08 NDAA and other recent changes, and the final rating had increased, along with his final disposition * he did not pick up the revised PEB packet that was sent to him by express mail and it was returned on 30 October 2008 * he was to be contacted and notified of the change (even if separated or retired), sign the election, and return it to the USAPDA * he was contacted on 4 November 2008 f. An email message from the Operations Officer, USAPDA, to the applicant, dated 7 November 2008, that shows, in pertinent part: (1) "Understand you have been asking some questions regarding the modified disability findings sent to you by Ms. H____." (2) The operations officer explained that a review of the applicant's case file revealed that it appeared his retirement date changed from 28 November 2008 to 28 October 2008. He offered the following: "Believing you were still in the Army, we made a change to your disability findings and sent it to you for your concurrence. However, because you are no longer in the Army, we [USAPDA] do not have the authority to change your rating or your separation from permanent disability retirement to placement on the TDRL. Therefore, you should ignore the revised disability findings we sent you as we cannot execute them even if you agreed with them." (3) He was offered two options: (1) take no action or (2) apply to the ABCMR and request that his rating be changed to 80% with placement on the TDRL. He was also advised to discuss his case and options with an attorney. g. A review of the case file failed to reveal evidence that the applicant responded to the 21 October 2008 memorandum or the email messages. 9. The FY08 NDAA provides for specific changes and enhancements to the disability processing of "recovering Service members" as defined by the NDAA. The definition of recovering Service members in the NDAA is narrow and most of the Service members in the disability evaluation system (DES) would not receive that designation in the disability evaluation process. In order to ensure uniformity and equitable attention to the needs of all Service members processing through the DES, timeliness and case load standards put forth in the memorandum apply to all Service members in the DES, unless otherwise stated in the memorandum. 10. Department of Defense (DoD) Directive–Type Memorandum (DTM) 11-015 provides that integrated DES (IDES) is the joint DoD-VA process by which DoD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DoD and VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. 11. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures 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. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through the DES. a. Chapter 3 (Policies), paragraph 3-5 (Use of the VASRD), shows that only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Any non-ratable defects or conditions will be listed on the DA Form 199, but will be annotated as non-ratable. b. Chapter 4 (Procedures), section V (Review and Confirmation of Physical Evaluation Board Action), paragraph 4-22 (Review by the USAPDA), shows in pertinent part: (1) Based upon review of the PEB proceedings, USAPDA may issue revised findings providing for a change in disposition of the Soldier or change in the Soldier's disability rating. (2) USAPDA will take the following actions when modifying PEB findings and recommendations. (a) Furnish the Soldier (next-of-kin or legal guardian) a copy of the revision by certified mail, return receipt requested. The letter of transmittal will state the reason for the change. Information copies will be provided to the PEBLO and to the Soldier's counsel. (b) Advise the Soldier (next-of-kin or legal guardian) that his or her election or rebuttal to the revision must be received by USAPDA within 10 days from the Soldier's receipt of the revised findings unless a request for extension is received and approved within the same timeframe. (c) Return the case records to the PEB if the Soldier is eligible for and requests a formal hearing. (d) Record the revised findings on DA Form 199-2 (USAPDA Revised PEB Proceedings). (3) If the Soldier fails to submit an election within the allotted time, USAPDA will deem that the Soldier has waived his or her right to file a rebuttal and take final action on the case. c. Chapter 7 (TDRL) provides in: (1) paragraph 7-2 (Reasons for placement on the TDRL) that a Soldier's name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement under Title 10, U.S. Code, section 1201, but for the fact that his or her disability is determined not to be of a permanent nature and stable. (2) paragraph 7-6 (Prompt processing), to prevent the Soldier suffering severe financial and other hardships, processing delays will be avoided. All portions of the medical examination will be conducted on a priority basis. All involved agencies and personnel will ensure that cases of Soldiers nearing expiration of 5-year TDRL tenure are identified and given priority processing. (3) paragraph 7-11 (Disposition of the TDRL Soldier), the USAPDA will remove a Soldier from the TDRL on the fifth anniversary of the date the Soldier's name was placed on the list, or sooner on an approved recommendation of a PEB. 12. Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has a disability rated at least 30%. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his records should be corrected to show he was permanently retired with a physical disability rating of 80%. 2. A PEB convened on 25 August 2008 and recommended the applicant be permanently retired with a disability rating of 30%. The PEB proceedings were approved on 5 September 2008. Accordingly, orders were issued that released him from active duty on 28 October 2008 and placed him on the retired list with a disability rating of 30% effective 29 October 2008. The orders that amended his permanent retirement date to 29 October 2008 were issued one (1) month prior to that date. 3. A second PEB convened on 21 October 2008 and recommended the applicant's PEB proceedings be revised with a combined rating of 80% and placement on the TDRL in compliance with FY 08 NDAA and VASRD section 4.129. (The diagnosis of PTSD was temporarily awarded 50% (previously awarded 30%). In addition, the diagnosis of residuals of TBI was recommended for a disability rating of 40% and the diagnosis of obstructive sleep apnea with daytime hypersomnolance was recommended for a disability rating of 30%.) a. On 21 October 2008, the USAPDA sent the applicant by express mail the revised proceedings and gave him a 10-day suspense to provide his concurrence/non-concurrence. b. Local Army officials were aware that the applicant was to be retired based on permanent disability on 29 October 2008; however, it appears USAPDA officials were not. As a result, USAPDA did not attempt to contact the applicant by a more expeditious method (e.g., telephonic contact followed by an email with the revised PEB proceedings attached). Thus, the applicant was given a suspense date to respond that was after his approved retirement date. Based on this fact, the USAPDA could not implement placement of the applicant on the TDRL at that point. Therefore, it appears the U.S. Army failed in its responsibility to timely notify the applicant and/or to take action to delay his permanent retirement date subject to receiving a response from the applicant. c. The evidence of record fails to show the applicant received information about the revised PEB proceedings prior to the date he was placed on the permanent retired list (29 October 2008). d. The evidence of record shows the applicant was informed that his failure to submit an election by the suspense date (31 October 2008) would be treated as concurrence with the USAPDA's modification of the original PEB proceedings. e. The evidence of record also shows an email message was sent to the applicant on 7 November 2008 indicating the USAPDA had been unaware of his change in retirement date (from 29 November 2008 to 29 October 2008). He was informed that, as a result, the USAPDA did not have the authority to change his disability rating or separation status from permanent disability retirement to placement on the TDRL. Therefore, he was advised to ignore the revised disability findings because the USAPDA could not execute them even if the applicant agreed with them. He was offered the option to either take no action or to apply to the Army Board for Correction of Military Records (ABCMR) and request that his rating be changed to 80% with placement on the TDRL. f. There is no evidence of record that shows the applicant responded to the USAPDA memorandum or email messages. 4. A Soldier's name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement, but for the fact that his or her disability is determined not to be of a permanent nature and stable. It shows the USAPDA will remove a Soldier from the TDRL on the fifth anniversary of the date the Soldier's name was placed on the list, or sooner on the approved recommendation of a PEB. 5. As a matter of justice the Board concludes that, based on the available evidence of record, it would be appropriate to correct his records to show he was placed on the TDRL in the grade of E-4 with a disability rating of 80% effective 29 October 2008 and then transferred to the permanent retired list in the grade of E-4 with a disability rating of 80% effective 29 October 2013. BOARD VOTE: __x______ ___x_____ __x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. releasing him active duty on 28 October 2008 based on physical disability and placing him on the Temporary Disability Retired List, in the retired grade of E-4, with a disability rating of 80%, effective 29 October 2008, and b. removing him from the Temporary Disability Retired List on 28 October 2013 and transferring him to the permanent retired list, in the retired grade of E-4, with a disability rating of 80%, effective 29 October 2013. 2. The Board recommends the Defense Finance Accounting Service be notified of this correction, review the individual's Army retired pay account, notify him of any administrative actions/adjustments that may be necessary, and pay him any pay and allowances that he may be due as a result of this correction. _______ _ x_______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20140016975 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140016975 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1