RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 APRIL 2005
      DOCKET NUMBER:  AR20040004362


      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. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Ms. Karen Heinz                   |     |Member               |
|     |Mr. Lawrence Foster               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be permanently retired from the Army by
placing his name on the PDRL (Permanent Disability Retired List) with a 50
percent disability rating.

2.  The applicant states he was improperly and “inequitably” discharged
when he “should have been placed on the PDRL list.”  He states that
military officials “wrongly and intentionally” informed him that he had to
be separated from the Army because he was entitled to benefits from the
Department of Veterans Affairs (VA) and that he could not receive both Army
and VA benefits.

3.  He notes that the VA granted him a 50 percent disability rating “with
no future examination as they determined [his] disability to be permanent.”
 He states that the Army evaluated him in January 2004 and that “as a
result of the examination the examining psychiatrist recommended he be
continued on the TDRL (Temporary Disability Retired List).  He states that
he was then “falsely” told that he was entitled to VA benefits and “could
no longer received [sic] military retirement benefits” and was instructed
to sign his discharge document.

4.  He states it was only later that he discovered that he had been lied to
by military officials and as such, requests permanent disability retirement
“as [he is] 50% disabled.”

5.  The applicant provides copies of his Army disability rating documents
and a copy of his VA rating decision.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant entered
active duty, in pay grade E-2, on 17 August 2000 as a result of a 2 year
enlistment contract.  He was promoted to pay grade E-3 in August 2001.

2.  On 17 May 2002 an informal PEB (Physical Evaluation Board) concluded
that the applicant’s “major depressive disorder, single episode, with mood-
incongruent psychotic features” prevented satisfactory performance of his
duties. However, the PEB also noted that the condition had not stabilized
to the point that a permanent degree of severity could be determined and as
such placed the applicant’s name on the TDRL with a 30 percent disability
rating.

3.  The PEB document noted that because the applicant’s disability was
rated at only 30 percent he would “actually receive 50% of your retired pay
base per month while on the TDRL….”

4.  The applicant concurred with the findings and recommendation of the PEB
and waived his right to a formal hearing.

5.  On 18 August 2002 the applicant was discharged and his name placed on
the TDRL.

6.  In September 2003 the VA granted the applicant a 50 percent disability
rating for his “delusional disorder with depressive mood” retroactive to 19
August 2002. The rating decision noted that “a 50 percent evaluation is
assigned because the evidence including your recent VA examination
indicates your mood was euthymic with an affect that was congruent with
your mood.”

7.  On 7 January 2004 the applicant underwent a TDRL examination at Madigan
Army Medical Center.  The summary of the examination, however, incorrectly
indicates that the evaluation took place on 7 January 2003.  The TDRL
examination noted that the applicant was hospitalized in April 2002 for
major depressive disorder with psychotic features.  During the TDRL
examination the applicant reported that since his discharge from the Army
he has had recurrence of his depressive and paranoid symptoms, and
primarily described his psychotic symptoms as paranoia, feeling that others
are talking about him and saying things about him to the extent that when
he is in a crowded room, he feels that everyone in there is expressing a
desire that he fail.  He also “endorses occasional auditory hallucinations
of overhearing people making comments about his behavior.”  He noted that
his “most recent severe paranoia occurred in May 2002….”  The evaluation
noted that he was not “currently” taking any medication and that one of his
medications was discontinued while still at Walter Reed Army Medical Center
and that his second medication was discontinued after his discharge from
the military.

8.  The evaluating physician noted that the applicant was “presently…in
mild partial remission of his major depressive disorder with psychotic
features” but continues to experience episodes of paranoia, which he is
“adapting to and moderating his disability from.”  The physician stated
that the applicant “currently reports good adaptation to independent life
outside of the Army with sustainable housing, education and support from
the VA medical center nearest his home.”

9.  The evaluating physician concluded that the applicant’s condition had
not changed since his medical evaluation board at Walter Reed Army Medical
Center and that he had not developed any new conditions since that time.
The physician noted that while the applicant’s condition was “functionally
stable during the past year…[it] may not be clinically stable in the sense
that his diagnosis of major depressive disorder is severe with psychotic
features may evolve to more severe psychotic illness such as
schizoaffective disorder or schizophrenia.”  The evaluating physician
recommended retention on the TDRL.

10.  An informal PEB convened on 8 March 2004 and noted that the applicant
had not had “medication or medical care/psychotherapy since discharge” and
that his depressive symptoms had remitted.  However, they also noted that
his condition had not improved to the extent that he was fit for duty.  The
PEB determined that the applicant was physically unfit but that his
condition warranted a 0 percent rating.  They recommended that the
applicant’s name be removed from the TDRL and that he received disability
severance pay.

11.  A memorandum, dated 8 March 2004, was provided to the applicant
informing him that his “recent periodic medical evaluation and other
available record” was evaluated by an informal hearing board.  He was told
that “based on the results of the informal hearing, the PEB recommends that
you now be removed from the TDRL.”  A copy of the proceedings was provided
to the applicant.  The applicant was told that because his name was being
removed from the TDRL, he was required to indicate if he agreed with the
findings and recommendation of the PEB by checking the appropriate block.
He was told the procedures for submitting a rebuttal and for requesting a
formal hearing.  He was also informed that his election statement must be
received by the PEB within 10 days of receipt of the 8 March 2004 notice.

12.  There is no indication that the applicant responded to the 8 March
2004 memorandum and on 22 March 2004 orders were issued removing the
applicant’s name from the TDRL.

13.  Army Regulation 635-40, which establishes the policies and provisions
for physical evaluation for retention, retirement, or separation of Army
Soldiers, provides that an individual may be placed on the TDRL (for the
maximum period of 5 years which is allowed by Title 10, United States Code,
section 1210) when it is determined that the individual's physical
disability is not stable and he or she may recover and be 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.
Following reevaluation, and once it has been determined that the
individual’s medical condition has stabilized, the individual could
ultimately be found fit, permanently retired providing his final disability
rating was at 30 percent or higher, or, in cases where the final disability
rating was less than 30 percent, entitled to disability severance pay.
Only individuals whose final disability rating is 30 percent or higher are
considered permanently retired by reason of physical disability.

14.  Title 38, United States Code, sections 1110 and 1131, permits 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 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 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.

15.  Title 38, United States code notes that a veteran’s application for VA
benefits constitutes an election of waiver of his or her retired pay while
on the TDRL.

16.  Until recently, Title 38 United States Code stated that any person
entitled to receive retirement pay based on service could not receive such
pay concurrently with benefits payable under laws administered by the
Department of Veterans Affairs.  However, Public Law 108-136, the National
Defense Authorization Act for Fiscal Year 2004, contained a provision to
restore the retired pay currently deducted from retirees’ accounts to their
receipt of Department of Veterans Affair (VA) compensation.  This
restoration of retired pay is known as Concurrent Disability Pay.  It is
applicable to all retirees who have a VA-rated, service-connected
disability of 50 percent or higher with the exception of disability
retirees with less than 20 years of service.  The phased-in restoration
began on
1 January 2004 and will increase each year until January 2014 when eligible
members will receive their full retired pay entitlement and their VA
disability compensation with no reduction.






DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, and the applicant has not provided any, that he
was falsely advised that because he was receiving disability benefits from
the Department of Veterans Affairs, that he could not be medically retired
from the Army.

2.  The evidence available to the Board shows that although the physician
who conducted the applicant’s TDRL examination recommended that he be
retained on the TDRL, members of the PEB, after reviewing the TDRL
examination and the applicant’s medical documents, and considering the
recommendation of the TDRL examining physician, ultimately concluded that
the applicant’s condition was such that a permanent decision could be
rendered.  They determined that while his condition rendered him unfit it
only warranted a 0 percent rating and as such, recommended that his name be
removed from the TDRL and that he receive disability severance pay.  The
PEB was not bound by the recommendation of the MEB.

3.  The applicant was given an opportunity to respond to the PEB findings
and recommendation, including the entitlement to request a formal hearing.
Based on the date of his final orders, 22 March 2004, it appears that the
applicant did not elect to exercise any of his options.

4.  The fact that the VA's rating of the applicant's condition was higher
than the Army's rating does not necessarily demonstrate any error or
injustice in the Army's rating.  The VA, operating under its own policies
and regulations, assigns disability ratings as it sees fit.  Any rating
action by the VA does not compel the Army to modify its rating.

5.  It is possible that the applicant may believe that if he were to
receive an Army disability rating of 50 percent or more and be permanently
retired he would then be entitled to both his Army retired pay and his VA
disability compensation.  However, because he had less than 20 years of
military service he would still not be entitlement to both benefits.
Concurrent Disability Pay is not available to military disability retirees
with less than 20 years of service.

6.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MM___  ___KH __  ___LF___  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.





                                  ______Melvin Meyer_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040004362                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050426                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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