IN THE CASE OF: BOARD DATE: 18 December 2008 DOCKET NUMBER: AR20080014351 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 military records to show that he was medically retired. 2. The applicant states, in effect, that the Physical Evaluation Board (PEB) at Fort Lewis, Washington, disregarded all applicable regulations and laws in making a determination of only a 10-percent disability for post traumatic stress disorder (PTSD). He contends that he was not afforded the opportunity to discuss the PEB’s findings and was not assigned legal representation. He was not counseled in accordance with all applicable rules of the Army Physical Disability Evaluation System (APDES) and there is no evidence in his medical records obtained by the Department of Veterans Affairs (VA) showing that he was advised of his rights regarding the PEB. 3. The applicant provides copies of a guide for the APDES (26 pages), dated 16 March 2007; VA Schedule for Rating Disabilities; Title 10, U.S. Code, sections 1201 and 1203; and Table 8, Psychiatric Functional Impairment Guideline Summary. 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. On 25 January 1978, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty (MOS) 95B (Military Policeman). 3. On 5 September 1986, the applicant was promoted to staff sergeant, pay grade E-6. 4. Item 4 (Assignment Considerations) of his Personnel Qualification Record, Part II, shows that he was diagnosed [date unavailable] with a heart murmur. It further indicates that he was to take the alternate physical fitness test. On 23 July 1987, an MOS reclassification board retained him in his MOS of 95B. 5. Orders 196-0001, Headquarters, Fort Carson, Colorado, dated 15 July 1993, directed that the applicant be discharged effective 19 August 1993. It authorized disability severance pay in the pay grade E-6 based on a 10-percent physical disability. 6. On 19 August 1993, the applicant was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) due to a physical disability with severance pay. He had attained the rank of staff sergeant, pay grade E-6, and had completed 15 years, 6 months, and 25 days of creditable active duty service. 7. The applicant’s service medical records, to include the proceedings of his Medical Evaluation Board (MEB) and PEB, are not available for review. 8. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay. 9. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling. 10. 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 rated at less than 30 percent. DISCUSSION AND CONCLUSIONS: 1. There is no available evidence showing that the applicant suffered from PTSD or that PTSD was the proximate cause of his discharge due to physical disability. 2. The applicant's service medical records, to include the proceedings from the MEB and PEB, are not available for review to determine if either or both of these medical boards erred in making their decisions or if administrative errors were made in not following MEB/PEB processing procedures. 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 the aforementioned requirement. 4. In view of the above, the applicant’s request should be denied. 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. XXX _________________________ 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) AR20070016793 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080014351 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1