RECORD OF PROCEEDINGS


           IN THE CASE OF:


      BOARD DATE:         24 FEBRUARY 2005
      DOCKET NUMBER:  AR20040001891


      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:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Mr. Ronald Weaver                 |     |Member               |
|     |Mr. Jonathon Rost                 |     |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, in effect, a higher Army disability rating than
the 10 percent rating he received.

2.  The applicant states that his separation document indicates that his
“current disabilities were cause[d] during the Gulf War conflict” and that
his disability rating is unjust “due to the Military not considering the
Gulf War Syndrome in determining [his] percentage rate.”  He states that
his conditions such as “Gulf War Syndrome, headaches, chronic diarrhea,
abdominal pain, and anal rash” were not considered in the rating decision.

3.  The applicant provides a copy of his 1998 Department of Veterans
Affairs rating document, two statements from Department of Veterans Affairs
physicians recommending that the applicant be “relieved of any and all
military duties/assignments,” and a copy of his separation orders which has
the statement “disability is based on injury or disease received in LOD
[line of duty] as a direct Result of Armed Conflict or caused by an
instrumentality of war and incurred in the LOD during a war period as
defined by law: No.” highlight.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant became a
member of the United States Army in 1982.  He served an initial period of
active duty as a member of the Regular Army between 1982 and 1985 and
continued his military affiliation as a member of the United States Army
Reserve after his release from active duty in 1985.

2.  The applicant was ordered to active duty in support of Operation Desert
Shield/Storm in November 1990 and was deployed to Southwest Asia in January
1991.  He was released from active duty in June 1991.

3.  In August 1994, while serving in pay grade E-5, he reenlisted in the
United States Army Reserve for a period of 6 years.  In November 1995 he
successfully completed the Basic Noncommissioned Officer Course, which
included passing a physical fitness test.

4.  In September 1996 the Department of Veterans Affairs denied the
applicant’s claim for service connected disability compensation for Post
Traumatic Stress Disorder (PTSD), head injury with severe headaches, lower
back pain, and peripheral numbness in the morning.  The rating decision
noted that the applicant’s service medical records showed no findings
regarding the claimed disabilities, that his records did not show any
diagnosis or treatment for a head injury or headaches due to trauma,
although his records did mention chronic lower back pain on a single
occasion in 1992.

5.  In March 1997 the applicant underwent a physical examination at the
Department of Veterans Affairs Medical Clinic in Houston, Texas.  The
examination was for the Persian Gulf Registry.  The examination noted that
the applicant was a mail carrier, that he had no toxic exposures to
chemicals as a civilian, and that he was unsure if he received the Anthrax
or botulism vaccination.  He indicated in the examination that he had been
exposed to pesticides in the form of spray, lotion and cream, as well as,
contaminated food, burning trash and feces, cigarette smoke, and fumes from
tent heaters and smoke from oil fires.  He complained of irritable bowel
syndrome, numbness, headaches, and nightmares.

6.  By July 1998 the Department of Veterans Affairs granted the applicant a
50 percent disability rating for PTSD, and a 30 percent rating for
irritable bowel syndrome “with alternating diarrhea and constipation due to
an undiagnosed illness….”  He received a combined disability rating of 70
percent retroactive to 1996.

7.  In spite of the Department of Veterans Affairs finding, the applicant
successfully passed an Army physical fitness test in October 1997, October
1998, October 1999, April 2000, and October 2001.  He continued to received
acceptable performance evaluation reports, was promoted to pay grade E-6 in
1997, and reenlistment for an additional 6 years in May 2000.

8.  In April 2001 the applicant’s original Department of Veterans Affairs
ratings were continued without increase.

9.  On 16 January 2003 the applicant was promoted to pay grade E-7.

10.  On 19 January 2003 the applicant was ordered to active duty for 365
days in support of Operation Enduring Freedom.  He was ordered to report to
Fort Hood, Texas.  The applicant had received two statements, both dated 14
January 2003, which recommended that the applicant be relieved of any and
all military duties, because of his medical condition.

11.  On 28 January 2003 the applicant received a permanent physical profile
for PTSD and major depressive disorder, pending a Medical Evaluation Board
(MEB), from medical officials at Fort Hood.
12.  A 3 February 2003 statement from the applicant’s commander noted that
the applicant had passed a physical fitness test in September 2002, but
that since being mobilized he presented his Department of Veterans Affairs
disability “on day one.”  He noted that the applicant often set a poor
example with lack of motivation and poor performance, and that it was his
understanding that his “last physical did not show a chronic condition….”
The commander indicated that he had expected the applicant would complete
his duties at the same level as others in similar duty positions.

13.  A “physician directed medical evaluation board, conducted on 28
February 2003, notes that the applicant’s chief complaint was
“posttraumatic stress disorder and major depression” and that he was given
two letters from his “VA docs not to deploy.”  The evaluating physician
noted that the applicant indicated that he had worked full time as a postal
worker since 1985 and that his only stressor now was his current activation
to active duty.  Ultimately, the evaluating physician concluded that the
applicant suffered from major depressive disorder, PTSD, paranoid
personality disorder (by history), and Gulf War Syndrome manifested by
chronic diarrhea, abdominal pain and rashes of unknown etiology. He
recommended referral to a Physical Evaluation Board (PEB) based on the
applicant’s major depressive disorder and PTSD.  The applicant concurred
with the findings and recommendation of the MEB.

14.  In March 2003 disability processing was discontinued in order to
obtain additional documents, including the applicant’s physical fitness
test scorecard, Desert Storm orders, last three performance evaluation
reports, last physical examine, and copies of his medication profile.

15.  A June 2003 LOD noted that the applicant’s PTSD, major depressive
disorder, and irritable bowel syndrome did not appear to manifest until
approximately 6 years after his deployment to Southwest Asia and that while
the time lapse makes it difficult to pinpoint an exact onset, his presented
medical records document the progression of his conditions.  Ultimately,
the LOD investigating officer concluded that the applicant’s PTSD, major
depressive disorder, and irritable bowel syndrome were determined to be in
the line of duty.

16.  An informal PEB noted in August 2003 that the applicant suffered from
major depressive disorder and PTSD, but that he had not been hospitalized
for psychiatric problems, was employed full time, required ongoing
psychopharmacological management and psychotherapy.  The PEB concluded,
“based on a review of the objective medical evidence of record” that the
applicant’s medical and physical impairment, which were rated at 10
percent, prevented reasonable performance of the duties required by his
grade and military specialty.  They noted that the applicant would have 20
years of creditable service in October 2003 and that after this date the
applicant would have the option of selecting separation with severance pay
or waiving severance pay and transferring to the Retired Reserve.  The
findings and recommendations of the PEB were approved.  The applicant
concurred and waved his right to a formal hearing.

17.  Although the applicant’s election document was not in records
available to the Board, his record does contain a separation document
indicating that he was discharged by reason of physical disability on 28
January 2004.  He received more than $53,000.00 in disability severance
pay.

18.  His 7 January 2004 separation orders indicated that he was discharged
from the United States Army Reserve on 28 January 2004.  The orders
contains the following statements under additional information:

      d.  Disability is based on injury or disease received in LOD [line of
      duty] as a direct Result of Armed Conflict or caused by an
      instrumentality of war and incurred in the LOD during a war period as
      defined by law: No.


      e.  Disability resulted from a combat related injury as defined in 26
      USC 104: No.


      f.  Member of an Armed Force on 24 Sep 75: No.


19.  Army Regulation 635-40 states that disability compensation is not an
entitlement acquired by reason of service-incurred illness or injury.  It
notes that the mere presences of an 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 reasonable may be expected
to perform.

20.  The Army Physical Disability Agency (USAPDA) has noted in advisory
opinions in similar cases that confusion frequently arises from the fact
that the Army and the Department of Veterans Affairs use different rating
systems.  While both use the Veterans Administration Schedule for Rating
Disabilities (VASRD), not all of the general policy provisions set forth in
the VASRD apply to the Army.  The Army rates only conditions determined to
be physically unfitting, because they adversely affect the individual’s
ability to perform assigned duties, thus compensating the individual for
loss of a career.  The Department of Veterans Affairs, on the other hand,
may rate any service-connected impairment, in order to compensate the
individual for loss of civilian employability or social functioning.  The
USAPDA has also pointed out that military disability ratings are based upon
the degree to which a medical condition effects the ability to perform duty
and not upon the diagnosis or name attached to the condition.  By way of
comparison, the VA can and does rate an individual for pain in many
instances.  The Army can only rate the same painful condition if it impairs
the soldier’s ability to perform assigned tasks.

21.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of Veterans Affairs to award compensation for disabilities which
were incurred in or aggravated by active military service.  However, an
award of a Department of Veterans Affairs rating does not establish error
or injustice in the basis for separation from the Army.  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 Department of Veterans Affairs, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence available to the Board indicates that all of the
applicant’s medical conditions were considered during his disability
processing, but only his PTSD and major depressive disorder were determined
to render him unfit for continued military service.  The applicant, who
would have been familiar with his medical conditions at the time of the MEB
and PEB, concurred with the findings of both and provides no evidence that
he ever raised additional medical issues during his disability processing.

2.  The evidence indicates that in spite of the applicant’s award of a
disability rating by the Department of Veterans Affairs in 1998,
retroactive to 1996, he continued to perform his military duties as a
member of the United States Army Reserve.  He continued to pass annual
physical fitness test, received successful performance evaluation reports,
completed training, and was promoted, not once but twice.  Only when he was
ordered to active duty in support of Operation Enduring Freedom was it then
determined that his PTSD and major depressive disorder would prevent
satisfactory performance of his duties.

3.  A rating action by the Department of Veterans Affairs does not
necessarily demonstrate any error or injustice in the Army rating.  The
Department of Veterans Affairs, operating under its own policies and
regulations, assigns disability ratings as it sees fit.  Any rating action
by that agency does not compel the Army to modify its rating.

4.  In order to justify correction of a military record the applicant must,
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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___YM   _  __RW___  ___JR  __  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.





                                  ____Yolanda Maldonado_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040001891                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050224                                |
|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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