BOARD DATE: 13 July 2017 DOCKET NUMBER: AR20150018556 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 July 2017 DOCKET NUMBER: AR20150018556 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. BOARD DATE: 13 July 2017 DOCKET NUMBER: AR20150018556 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, in effect, correction of his records to show he was permanently retired by reason of physical disability. 2. The applicant states: a. He deployed with his unit to Saudi Arabia in support of the Gulf War. While deployed, he fell and shattered his heels. As a result, he was sent home. He was eventually placed on the Temporary Disability Retired List (TDRL), but he was never reevaluated. He lost his identification card and when he was trying to obtain a new one, he was told his case was administratively closed. b. He has been trying to obtain information on how to correct the process to close out his case for years now. No one has a record of his case or any paperwork stating he was separated. He has contacted various agencies, including the Department of Veterans Affairs (VA) and his local and state representatives. 3. The applicant provides no additional evidence. 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. The applicant enlisted in Regular Army on 30 August 1989. He completed initial entry training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist). 3. He deployed to Southwest Asia from on or about 21 September 1990 through on or about 17 February 1991. He was injured on 11 January 1991 when he fell from a height of approximately 30 feet and sustained bilateral fractures of the calcaneus. He was sent to Germany for medical treatment en route to the United States. 4. A DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 24 April 1992, shows he was referred to a physical evaluation board (PEB) for disposition due to degenerative joint disease, subtalar joint bilateral. He acknowledged that he did not desire to continue on active duty and he agreed with the MEB findings. 5. A DA Form 199 (PEB Proceedings) shows a PEB convened on 20 May 1992 and found the applicant physically unfit for military service because of an open reduction and internal fixation of comminuted fractures of bilateral calcanei; rated as severe. The PEB recommended a disability rating of 60 percent and placement on the TDRL with reexamination on or about 1 November 1993. On 21 May 1992, he concurred with the PEB findings and waived a formal hearing. 6. On 26 May 1992, the recommendation of the formal PEB was approved on behalf of the Secretary of the Army. 7. Orders D110-4 issued by the Physical Disability Branch, U.S. Army Total Personnel Command, on 4 June 1992 ordered his retirement effective 25 June 1992 with placement on the TDRL effective 26 June 1992 with a 60-percent disability rating. 8. The applicant was honorably retired on 25 June 1992. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4, by reason of temporary physical disability. He received a DD Form 215 (Correction to DD Form 214) on 26 October 1994, which corrected administrative errors. 9. The applicant was medically reevaluated on 21 October 1993. The medical official noted at that time: a. The applicant's injuries were stabilized. His condition level of subtalar arthritis prevented him from running, jumping, or walking any significant distances. b. He required special footwear to maintain his symptomatology at a low level; however, he did ambulate without aids and was able to be employed in a sedentary position. c. It was likely that his subtalar arthritis would progress over time and likely that it will ultimately need a fusion to prevent significant pain. The time course was unknown, but was suspected to be in the 5-to-10-year range. 10. On 8 November 1993, the applicant agreed with the medical reexamination findings and recommendations and did not desire an appeal. 11. A DA Form 199, dated 22 November 1993, shows an informal PEB considered the applicant's condition and found his condition continued to be unfitting and ratable. a. The PEB recommend a rating of 20 percent to more accurately reflect the current degree of severity of his condition. b. The PEB notified him that a disability rating of less than 30 percent for Soldiers with less than 20 years of active military service for retirement required separation with severance pay in lieu of retirement. c. He did not concur with the findings and demanded a formal hearing with a personal appearance on 14 December 1993. 12. The applicant was scheduled for a formal hearing on 26 January 1994. A DD Form 199, dated 26 January 1994, shows that after a formal hearing and after considering all the evidence, his testimony, and comments from counsel, the PEB found him unfit to perform the required duties for his MOS. The PEB determined his bilateral ankle condition with moderate limitation of motion rendered him unfit to perform at his rank and MOS. The PEB recommended his separation with severance pay with a disability rating of 20 percent. 13. A DA Form 199-1 (Election to Formal PEB Proceedings), dated 22 February 1994, shows the applicant appeared before the formal PEB on 26 January 1994. He was informed that he had 10 days in which to make an election and submit a rebuttal, if applicable. He was then granted a 1-week extension to submit his rebuttal. The PEB noted they did not receive any additional information. Therefore, it was assumed that he concurred with the findings of the PEB. 14. Orders D50-7 issued by U.S. Total Army Personnel Command on 15 March 1994 removed the applicant from the TDRL and discharged him from the service effective the same day. Based on his current 20-percent disability rating, he was authorized severance pay. 15. In the processing of this case, an advisory opinion was obtained on 31 May 2017 from the Army Review Boards Agency (ARBA) Senior Medical Advisor. The advisory official noted and opined: a. The applicant has a current 40-percent service-connected disability rating from the VA for various medical conditions. (The advisor has access to the Joint Legacy Viewer, allowing him access to the applicant's VA medical records.) b. He did not meet medical retention standards for post-traumatic arthritis bilateral subtalar joints with limited range of motion for medical standards of fitness during his era of service. His medical conditions were duly considered during the medical separation processing. c. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the reason for discharge in this case. d. He was initially placed on TDRL status after MEB/PEB proceedings in 1992. In 1993, he underwent a TDRL reevaluation that noted stability of ankles/ feet with sedentary activity and some improvement in range of motion, but persisting disability precluding return to active military service. e. He appealed the initial November 1993 PEB determination of a 20-percent rating and requested a personal appearance before a formal PEB. The formal PEB in January 1994 affirmed the original determination. He again non-concurred and elected to appeal the formal PEB; he requested and was granted an extension. f. As of 22 February 1994, it appears that the PEB had not received the applicant's documents via the applicant's PEB Liaison Officer as noted in the administrative memorandum for record, dated 22 February 1994. g. The original documents were later received by the PEB. The applicant was separated as of 15 March 1994 with a 20-percent disability rating with severance pay, as per the informal and formal PEB determinations. 16. The applicant was provided a copy of the advisory opinion on 31 May 2017 to allow him an opportunity to comment and/or submit a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation, including retirement. Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 2. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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. The version in effect at the time provided for medical review boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 3-1 provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. 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. c. Paragraph 3-9 states 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. Requirements for placement on the TDRL are the same as for permanent retirement. The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation. The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code. In addition, the condition must be determined to be temporary or unstable. d. Paragraph 7-2 states an individual may be placed on the TDRL (for up to the maximum period of 5 years allowed by Title 10, U.S. Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be found fit for duty or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating. e. Paragraph 7-7 states medical examiners and adjudicative bodies will carefully evaluate each case. They will recommend removal of the Soldier's name from the TDRL as soon as the Soldier's condition permits. Placement on the TDRL confers no inherent right to remain for the entire 5-year period allowed. 3. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. 4. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 5. Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards 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. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. DISCUSSION: 1. The applicant's request for retirement due to disability instead of the disability discharge with severance pay he received was carefully considered. He contends he was not reevaluated while on the TDRL and only found out he was removed from the TDRL when he attempted to replace a lost identification card. 2. The evidence of record confirms the applicant was placed on the TDRL with a 60-percent disability rating on 25 June 1992. He was reevaluated by the PEB while on the TDRL on 21 October 1993. The PEB determined his physical condition improved; however, he still failed to meet retention standards resulting in a 20-percent disability rating. 3. The applicant did not concur with the PEB findings after he was reevaluated and requested an appearance before a formal hearing. The formal hearing was granted and was held on 26 January 1994. The PEB affirmed that his condition resulted in a 20-percent disability rating. He once again did not concur with the PEB findings and requested an appeal. 4. On 22 February 1994, the PEB ratings were finalized and he was discharged with severance pay effective 15 March 1994. 5. Title 10, U.S. Code, section 1201, provides that physical disability retirement for service members requires a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. An advisory opinion was requested to review the applicant's medical records and contentions. The advisory official found no evidence of a medical disability or condition during his period of military service that would support a change to the reason for the discharge in this case. 7. The applicant's separation with severance pay was accomplished in compliance with applicable laws and regulations and there does not appear to be evidence of error or injustice in this case. 8. The law allows the VA to award compensation for disabilities that 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's rating. Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018556 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2