RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 January 2006
      DOCKET NUMBER:  AR20050000295


      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. Rosa M. Chandler              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Randolph J. Fleming           |     |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, that his Physical Evaluation Board
(PEB) proceedings be corrected to include his civilian diagnosed sleep
disorder (severe sleep obstructive apnea); that his disability rating be
increased from 20 percent to 30 percent or higher; and that he be separated
by reason of disability retirement vice disability with severance pay.

2.  The applicant states his sleep disorder was misdiagnosed by his Army
doctor at the Kirk Clinic, Aberdeen Proving Ground, Maryland and he was not
referred for a sleep study even though the issue of sleep apnea had been
raised.  Instead, he was prescribed "Trazodone (DESYREL EQ 50MG) for
insomnia" and told that his sleep and snoring problem was probably related
to anxiety disorder and depression.

3.  The applicant adds that, after being separated, he discussed the matter
with his Veterans Affairs (VA) primary care provider and he was referred to
a sleep study in August 2004.  The results showed he had severe obstructive
sleep apnea.  The applicant states he believes that had he been referred
for a sleep study prior to being separated, his disability rating would
have included his sleep disorder and he would have received a higher
disability rating and retirement vice separation.

4.  The applicant provides in support of his request:

      a.  Copy of his DD Form 214 (Certificate of Release or Discharge from
Active Duty).

      b.  Sleep Study Results from the VA Medical Center, Baltimore,
Maryland, dated 30 September 2004.

      c.  Medical records from the Primary Care Division, Aberdeen Proving
Grounds, Maryland, dated between December 2002 and March 2003.

CONSIDERATION OF EVIDENCE:

1.  On 6 August 1998, the applicant enlisted in the Regular Army and served
continuously until separated on 12 November 2003 with an honorable
discharge by reason of "Disability, Severance Pay."  He served in military
occupational specialty (MOS) 44B, Metal Worker.  The highest rank he
achieved was specialist four, pay grade E-4, which was the rank he held at
the time he was discharged.

2.  On 15 July 2003, the applicant underwent a formal Physical Evaluation
Board (PEB).  The PEB found the applicant was physically unfit to perform
the duties associated with his grade and MOS and recommended separation
with severance pay and a combined rating of 20 percent.  The applicant was
determined to suffer from:

      a.  Chronic pain with a history of an injury determined to be in the
line of duty (LOD) and rated 10 percent disabling.


      b.  Right hip and bilateral knee pains with a history of injuries
(LOD) and rated 10 percent disabling.


      c.  Chronic pains with a diagnosis of pes planus, a congenital
condition that existed prior to service (EPTS) was not rated.


      d.  Generalized anxiety disorder with a history suggesting that high
levels of anxiety and stress were symptomatic throughout his life and
manifested by such physical signs as stuttering was determined to be an
EPTS condition.  There was no evidence of permanent service aggravation and
the condition was not rated.

3.  On 23 July 2003, the applicant stated that he did not concur with the
PEB's findings and provided a rebuttal statement.  His rebuttal addressed
only a "bilateral ankle injury" where "pain started from my bilateral knee
down to my bilateral foot."

4.  On 24 July 2003, the president of the PEB, responded to the applicant's
rebuttal by stating that the rebuttal had not provided any new diagnosis or
changes to his currently-rated disabilities.  The applicant was also
advised that the PEB follows the guidelines of the VA Schedule for Rating
Disabilities, Department of Defense Instructions, and Army Regulation 635-
40 and that these documents provide very specific guidance on what ratings
must be used and how to determine the severity of an aliment or affliction
when determining a compensation rating, as well as how to determine which
conditions warrant compensation.  Several of his conditions did not warrant
compensation as they existed prior to service or resulted from conditions
that existed prior to service.  His conditions may have seemed severe to
him; however, they were appropriately rated and he was given the benefit of
the doubt and a higher rating when a lower rating could have been made.
The applicant was advised that the PEB affirmed the 15 July 2003 decision
and that his case and rebuttal were being forwarded to the US Army Physical
Disability Agency (PDA) for review.

5. On 30 July 2003, the Chief, Operations Division, PDA, advised the
applicant that the PEB correctly adjudicated his case and the appropriate
rules had been applied.  The PEB's findings were supported by substantial
evidence and the decision had been affirmed.

6.  On 12 November 2003, the applicant was honorably discharged by reason
of disability and was afforded severance pay in the amount of $17,493.00
He had completed a total of 5 years, 3 months, and 7 days of active
military service.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement
or Separation) provides the 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.  If a Soldier is found unfit because of physical
disability, this regulation provides for disposition according to
applicable laws and regulations.

8.  Title 10, United States Code, section 1201, provides for the physical
disability retirement of a member who has at least 20 years of active
service or a disability rated at least 30 percent.  Section 1203 provides
for the physical disability separation of a member who has less than 20
years active service and a disability rated at less than 30 percent.

9.  Title 38, United States Code, section 310 and 331, permits the VA to
award compensation for a medical condition that was incurred or aggravated
by active military service.

DISCUSSION AND CONCLUSIONS:

1.  There is no indication the applicant was improperly diagnosed or
treated while on active duty.  Many sleep-related problems are stress-
related and treated with various anti-anxiety drugs such as Trazodone.  His
treatment was in accordance with the best medical practice.

2.  The applicant had medically unfitting conditions at the time of
separation that were rated at 20 percent disabling; therefore, he was not
eligible for physical disability retirement.

3.  When the applicant rebutted his PEB findings, he mentioned only his
ankles; he never mentioned trouble sleeping.  It is only well after his
separation that he now argues this issue.

4.  The evidence the applicant provided shows that he was diagnosed with
severe obstructive sleep apnea on 6 August 2004, almost 1 year after he had
been separated.  The applicant's newly diagnosed medical condition does not
provide a basis for changing his current rating decision.  Neither does it
show or demonstrate that he was improperly diagnosed prior to separation.

5.  The VA may take into consideration the applicant's new diagnosis.  The
VA awards compensation for disabilities which were incurred in or
aggravated by active military service.  Furthermore, unlike the Army, the
VA can evaluate a veteran throughout his or her lifetime, adjusting the
percentage of disability up or down 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __tmr___  __rjf___  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.




                                        William D. Powers
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000295                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060105                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |20031112                                |
|DISCHARGE AUTHORITY     |AR635-40                                |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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