RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 19 February 2004
         DOCKET NUMBER: AR2003088561


         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Robert Duecaster		Member
Mr. Melvin H. Meyer		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his discharge by reason of physical disability with severance pay be changed to show that he was retired by reason of physical disability.

2. The applicant states that his level of disabilities justifies physical disability retirement.

3. The applicant provides copies of his: DD Form 214 (Certificate of Release or Discharge from Active Duty); several medical documents; Narrative Summary; Medical Evaluation Board (MEB); Physical Evaluation Board (PEB); and a copy of his Department of Veterans Affairs (VA) Rating Decision.

4. In an additional statement, he stated that he was injured as a result of a parachute accident. However, he was not aware that he was injured at that moment. He later felt an electric shock through his spine and was unable to stand up straight. Upon return to his unit, he went to the hospital and was diagnosed as having a fractured coccyx (the small bone caudal [directed toward the tail] to the sacrum in man, formed by union of four rudimentary vertebrae). Although he was in constant pain, he was accused of faking his injury. He was on several medications for his injury that basically made him feel like a walking zombie.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1. Counsel requests that the applicant's records should be corrected to show that he was retired by reason of physical disability.

2. Counsel states that the applicant should have been retired by reason of physical disability. The evidence provided by the applicant has established that he was recommended for separation with a combined rating of 10 percent with severance pay. He received severance pay in the amount of $24, 931.20 at the time of his separation. There was no record of misconduct. The applicant sustained "a coccydianial injury" that was substantiated as a combat related injury, stemming from a parachute jump during operations in October 1996. He was referred for civilian medical care on 18 December 1997 due to his coccyx injury. He was seen at the Walson Army Medical Center (WAMC), Fort Bragg, North Carolina on 25 February 1998.





3. Upon evaluation for chronic coccygeal pain, he was referred to a PEB for final adjudication. The PEB concluded that his medical condition prevented satisfactory performance of duty in his primary military occupational specialty (PMOS) and grade. He was honorably discharged with severance pay on 27 September 1998.

4. Counsel also states that the applicant was seen by the VA and was rated as 100 percent disabled effective 12 October 1999. The VA rated the applicant at 80 percent disabled for his service connected injuries and later increased his disability to 100 percent due to his unemployability. Counsel requests that the Board’s final decision reflect sound, equitable principles consistent in law, regulation, policy, and discretion.

5. Counsel provides no documentation.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice which occurred on 27 September 1998, the date of his discharge. The application submitted in this case is dated 5 March 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 the Army Reserve on 26 March 1991. He enlisted in the Regular Army on 1 April 1991 as a cook (92G). He was promoted to sergeant (SGT/E-5) effective 1 December 1996.

4. On 1 October 1997, the battalion physician requested that the applicant be deleted from reassignment because of his medical condition. He stated that the applicant was injured 12 months ago and had undergone extensive physical therapy with little positive results. He also stated that he was pending an appointment with orthopedics for possible surgical correction and would likely be permanently profiled and medically boarded.

5. On 31 December 1997, the applicant was referred for civilian medical care due to his injury that occurred in October 1996. He was diagnosed as having coccygeal pain and was evaluated for surgical intervention.

6. The applicant's clinical record, dated 25 February 1998, indicates that he was pending an MEB for chronic lower back pain.

7. A 3 March 1998 Mental Health Narrative Summary indicated that his injury included a status post fractured coccyx. He was seen by orthopedics, general surgery, physical therapy, and the pain clinic; and was issued a P3 profile. That summary indicated a diagnosis of psychological factors affecting his physical condition, elective mutism (unable to speak), histrionic/passive dependent traits, and coccydynia. He was referred to physical medicine for follow-up care consisting of aquatic therapy.

8. On 10 April 1998, an MEB considered the applicant's case. The MEB diagnosed the applicant as having a healed coccyx fracture with chronic coccygeal pain. He was referred to a PEB. On 5 May 1998, the PEB found the applicant unfit and recommended a combined disability rating of 10 percent. The PEB indicated that his separation was based on a disability resulting from an injury received in line of duty.

9. On 14 August 1998, orders were published on the applicant with an established separation date of 27 September 1998.

10. He was honorably discharged on 27 September 1998, under the provisions of Army Regulation 635-40, paragraph 4-24b(3), disability with severance pay. He completed 7 years, 5 months, and 27 days of creditable service.

11. The applicant’s medical records are unavailable for review by this Board.

12. The applicant was seen by a civilian psychiatrist for Post-Traumatic Stress Disorder (PTSD) and severe chronic pain from injuries suffered while on active duty. The medical report prepared by that doctor indicated he had required substantial amounts of medication to stabilize his condition, which was still marginal. He had made substantial progress and his condition plateaued. He was currently assessed as marginal. He continued to suffer vivid flashbacks of his accident, as well as night sweats and nightmares. He also continued to suffer severe chronic pain in his legs and back and required substantial amounts of medication to manage. In his opinion, the applicant was not employable and his prognosis for returning to meaningful employment was poor.

13. The applicant filed a claim with the VA for his service-connected disability. He was granted a 70 percent rating for major depression; 10 percent for posttraumatic arthritis, right knee; 10 percent for posttraumatic arthritis, left knee; 10 percent for coccygodynia; and was granted a combined rating of 80 percent for his service connected conditions. However, his rating was increased to 100 percent effective 12 October 1999, due to his unemployability.

14. Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

15. 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 office, grade, rank, or rating. It provides for medical evaluation 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 AR 40-501, chapter 3. If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

16. Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

17. Paragraph 4-24 of Army Regulation 635-40 pertains to disposition by the Total Army Personnel Command (PERSCOM) upon the final decision of the Physical Disability Agency (PDA). It states that PERSCOM will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the United States Army Physical Disability Agency (USADPA) for clarification or reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and recommendations. Subparagraph 4-24b(3) applies to separation for physical disability with severance pay.

18. PTSD, an anxiety disorder, was not recognized as a psychiatric disorder until 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM) III. The condition is described in the current DSM IV, pages 424 through 427. While psychiatrists have only categorized PTSD as a distinct diagnosis since 1980, it has, as early as the Civil War, been described in psychological literature, variously labeled as shell shock, soldier’s heart, effect syndrome, combat fatigue and traumatic neurosis. During the period of time in question, similar psychiatric symptomatology was categorized as hysterical neurosis. Although the current label of PTSD is of rather recent acceptance, the idea that catastrophes and tragedies can result in persistent emotional and psychological symptoms is common even among the lay public. While PTSD was not recognized as a specific illness at the time of the applicant’s separation from the service, the fact that an individual might not be fit for further military
service because of psychosis, psychoneurosis, or neurological disorders was outlined in Army Regulation 40-501 which was in effect at the time of his separation. The Army established standards and procedures for determining
fitness for retention and utilized those procedures and standards in evaluating individuals at that time. The specific diagnostic label given to an individual’s condition a decade or more after his discharge from the service may change, but any change does not call into question the application of then existing fitness standards.

19. Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (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 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. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment. Furthermore, 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 at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension. By law, a veteran can only be compensated once for a disability. If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

20. An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability.

DISCUSSION AND CONCLUSIONS:

1. The evidence of record shows that the applicant sustained an injury to his coccyx as a result of a parachute jump during operations in October 1996. The applicant was referred for civilian medical care and was seen by military physicians. He was diagnosed as having coccygeal pain and evaluated for surgical intervention.

2. The applicant was issued a P3 profile and was referred to several medical clinics for further evaluation and follow-up care. He appeared before an MEB and was diagnosed as having a healed coccyx fracture with chronic coccygeal pain and was referred to a PEB. The PEB found the applicant unfit and recommended a combined rating of 10 percent with severance pay. The PEB indicated that his separation was based on a disability resulting from an injury received in line of duty.

3. It is assumed that in the absence of evidence to the contrary, that the applicant concurred with the findings of the PEB as such orders were issued on 14 August 1998 with an established separation date of 27 September 1998.

4. The applicant was honorably discharged on 27 September 1998, under the provisions of Army Regulation 635-40, for disability with severance pay.

5. The applicant was seen by a civilian psychiatrist after his discharge for PTSD and for severe chronic pain for injuries he suffered while on active duty. The psychiatrist evaluated the applicant for several conditions and concluded that he was unemployable and the prognosis for returning to meaningful employment was poor.

6. The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service with severance pay.

7. The applicant filed a claim with VA and received a combined rating of 80 percent for his service connected conditions and was later increased to 100 percent due to his unemployability. The rating action by the VA does not necessarily demonstrate any error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.






8. Records show the applicant should have discovered the error or injustice now under consideration on 27 September 1998; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 26 September 2001. 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

__rw___ __rd____ __mm______ DENY APPLICATION

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.




                  ___Raymond J. Wagner_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088561
SUFFIX
RECON
DATE BOARDED	20040219
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19980927
DISCHARGE AUTHORITY	AR 635-40. Para 4-24b(3). . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	177
2.
3.
4.
5.
6.