IN THE CASE OF: BOARD DATE: 18 November 2015 DOCKET NUMBER: AR20140018330 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 appearance before a Physical Evaluation Board (PEB) to attain a higher physical disability rating. 2. The applicant states: a. he was not given the opportunity to represent his point of view before his own medical board and as a result he was denied due process; b. he was notified in a fax from Fort Lewis, Washington, dated 20 October 1994, he had been given a separation for being physically unfit and recommended for a combined disability rating of 10% with severance pay; c. he was notified by a letter from the United States Army PEB, Madigan Army Medical Center, Tacoma Washington, dated 25 April 1995, to appear before a formal hearing at Fort Lewis, WA on 12 May 1995; d. he called Ft. Lewis, WA to request a change of venue from Tacoma, WA to Ft. Bliss, TX, due to personal problems and was told to take his letter to his unit to make his chain of command aware of what was going on; e. given his unit had been deactivated, he went to Inspector General (IG), Fort Bliss, TX, where he was told his concerns was out of the IG’s hands because he was in the Individual Ready Reserve; and g. he had no other recourse but not to attend his PEB because he could not leave his injured wife home alone. 3. The applicant provides the supporting documents listed on his application, minus the DA Form 1379 (Unit Record of Reserve Training) included on that list because it was not received with his application. CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. After having prior active duty and Reserve component service in the United States Navy, Navy Reserve, Army National Guard (ARNG), and the United States Army Reserve (USAR), the applicant reenlisted in the USAR for 6 years on 10 January 1988. He held the rank of specialist four (SP4). 3. On 15 March 1992, a DA Form 268 (Report to Suspend Favorable Actions (FLAG)) was initiated against the applicant for failing to meet the Army’s weight control standard. 4. His official military personnel file (OMPF) contains a DA Form 2173 (Statement of Medical Examination and Duty Status) dated October 1992. It shows: * while on active duty for training, the applicant had a cerebrovascular accident on 15 March 1992 during an Army Physical Fitness Test (APFT) * he reported to sick call on 15 March 1992 for a complaint unrelated to the incident that occurred during the APFT * the applicant was admitted to the William Beaumont Army Medical Center (WBAMC) on 31 March 1992 5. An Optical Form 275 (Medical Record Report) dated 12 April 1992, shows the applicant was admitted to the hospital on 31 March 1992, where he did well during admission. Magnetic resonance imaging (MRI) completed during admission read normal. An orthopedic evaluation showed a normal left knee but a left lower extremity radiculopathy. An electromyography (EMG) and nerve conduction velocity was significant for deep peroneal palsy and acute anterior compartment syndrome. The applicant was also seen by psychology during his admission for some hostility that was noted toward the Army with continued evaluation at that time. He was diagnosed with “left lower extremity deep peroneal nerve palsy” and left lower extremity acute compartment syndrome.” His condition was stable and improved and he was discharged on 8 April 1992. 6. Headquarters, 807th Medical Brigade, published Orders Number 24-23, dated 9 April 1993. It directed the applicant’s reassignment to the USAR Control Group, by reason of “Non-DMOS Qualified” on 16 April 1993. 7. A Narrative Summary (NARSUM) from the WBAMC, El Paso, Texas, dated 15 March 1994, shows the applicant was command referred for medical evaluation due to his chief complaint of left lower extremity weakness, numbness and a burning sensation. On 31 March 1992 (should read 15 March 1992), he experienced the acute onset of left lower extremity weakness while running and noted paresthesias to the lateral aspect of his lower extremity with inability to dorsiflex his left foot. The NARSUM includes the psychology service conclusion. His diagnosis were: * Left deep peroneal neuropathy * Weakness, paresthesias, and dysesthesias to the left limb are inconsistent with physical findings, and do not correlate with anatomic distribution * Personality disorder (avoidant, narcissistic, compulsive traits) 8. On 28 March 1994, the medical evaluation board (MEB) recommended the applicant's referral to a PEB. The applicant was informed and agreed with the MEB findings and recommendations on 26 August 1994. 9. On 29 August 1994, the PEB Liaison Officer (PEBLO) notified the PEB President the applicant’s required DA Form 2A/2-1 (Personnel Qualification Records), Leave and Earnings Statement, or Health Records were not available for review, his unit was disbanded, and his 201 File could not be located. The PEBLO advised the President to adjudicate this case without this information to prevent further delay. 10. On 11 October 1994, the applicant’s case was returned to the PEBLO. It had been noted that the MEB was dictated on 14 March 1994 and the applicant did not sign it until 26 August 1994. The MEB was over 6 months old and no longer valid. An addendum updating the applicant’s current condition was requested. 11. A Medical Record Report, dated 13 October 1994, shows an addendum was prepared showing no new findings in the applicant’s medical condition. The applicant also authenticated this document with his signature at that time. 12. On 19 October 1994, a PEB at Fort Lewis, Washington, found the applicant unfit for further service due to "left peroneal neuropathy, with weakness of muscles of foot and foot drop.” The PEB recommended the applicant's separation with severance pay with a rating of 10 percent. Conditions listed as medical diagnoses 2 and 3 listed on the MEB were considered by the PEB and found to be neither unfitting nor ratable. 13. On 4 November 1994, the applicant did not concur with the PEB findings and demanded a formal hearing with personal appearance and representation by regularly appointed counsel. He acknowledged he had been counseled pertaining to his disability evaluation by the PEBLO. 14. On 15 November 1994, the PEBLO notified the applicant to appear before a formal PEB on 8 December 1994 and provided him the appropriate applicable instructions. (His OMPF includes no record of the formal PEB.) 15. On 24 February 1995, the Personnel Manager, Army Reserve Personnel Center, completed a Memorandum for Record indicating the applicant could not be separated from the Army by reason of expiration term of service while he was on medical hold and undergoing processing. Once his processing was complete and a determination had been made on his physical condition, he could reenlist or be discharged as deemed fit by the medical board. 16. His OMPF contains a memorandum dated 9 March 1995, which shows he was granted authority to antedate an extension agreement for the duration of his PEB processing as an exception to policy. On 23 March 1995, the applicant extended his enlistment for an additional two years and he was assigned a new ETS of 10 January 1996. 17. On 25 April 1995, the PEBLO again notified the applicant to appear before a formal PEB on 12 May 1995 and provided him the appropriate applicable instructions. On 11 May 1995, the applicant prepared a self-authored statement indicating, after consulting with the appointed counsel and considering the false psychology report, he waved his hearing. 18. On 12 May 1995, the PEB findings and recommendation were approved for the Secretary of the Army. 19. On 2 October 1995, U. S. Total Army Personnel Command, (currently the Army Human Resources Command), issued Orders Number D190-21, directing the applicant's discharge from the USAR under the provisions Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) on 16 October 1995. These orders indicated he received a 10-percent disability rating and disability severance pay. 20. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and 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. a. Paragraph 3-1 provides guidance for standards of fitness. It states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. b. Paragraph 3-5 contains guidance for rating disabilities. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 21. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. 22. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions it determines were incurred during military service and subsequently affect the individual's employability. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army rates only conditions determined to be physically unfitting for further military service, thus compensating the individual for loss of a military career, while the VA may rate any service-connected impairment to compensate the individual for loss of civilian employability. DISCUSSION AND CONCLUSIONS: 1. The applicant contends he was denied an appearance before a PEB and therefore denied due process. He claims that had he been given an opportunity to present his point of view he may have received a higher disability rating. There is insufficient evidence to support this claim. 2. The evidence of record confirms a PEB, after examining all the medical evidence, determined the applicant was unfit for further service based on his left peroneal neuropathy, with weakness of muscles of foot and foot drop condition and he received a 10 percent disability rating. Subsequent to this determination, the applicant initially requested a formal hearing and was twice scheduled to appear before a formal PEB on 15 November 1994 and again on 25 April 1995. On 11 May 1995, the applicant submitted a self-authored statement waiving his hearing and the informal PEB’s recommendation was approved by the Secretary Army. Accordingly, the record confirms the applicant was properly processed through the Army's PDES. All requirements of law and regulation were met and the applicant's rights were fully protected throughout the PDES process. 3. Absent any error or injustice in the applicant's PDES processing, there is an insufficient evidentiary basis for changing the 10-percent disability rating assigned to the applicant by the PEB at the time of his discharge. Accordingly, there is no basis upon which to grant the applicant appearance before a PEB more than 20 years after his discharge from the USAR. 4. As it relates to the applicant’s desire to receive an increased disability rating, he is informed that the VA may rate any service-connected impairment, thus compensating for loss of civilian employment. The VA may also award compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. It can also evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x_____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________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) AR20140018330 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140018330 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1